The vexed question of abortion law reform was
unexpectedly back in the news in Australia earlier this year. In
February 1998 it was announced that two Perth doctors were to be
prosecuted under the Western Australian laws that make abortion a
crime. These were the first charges laid against medical
practitioners under those Western Australian laws in over 30
years.

The political events that followed this decision
ultimately culminated in the passage by the Western Australian
parliament of legislation introducing what is in many respects the
most liberal abortion law in Australia. The legislation originated
as a Private Member's Bill introduced into the upper house of the
Western Australian parliament by Cheryl Davenport MLC (ALP). The
legislation passed with some amendments on 20 May 1998.

The question of when, if ever, performing an
abortion will be morally justified is one that endlessly consumes
many philosophers, theologians, feminists, social scientists and
legal commentators. It is also a question that a large number of
Australian women address every day in a more applied sense: when
they are making an actual decision about whether to continue an
unplanned pregnancy. Like many other medical and moral decisions
that people make, each woman's abortion decision is made in the
context of complex-and sometimes conflicting-personal and societal
values. These values influence and inform the decisions that
individual women make about abortion, and these values are in turn
influenced and informed by those decisions.

Because different people have different views
about which values are offended or affirmed when a woman chooses
abortion, and because these views are sometimes irreconcilable and
often very strongly held, the debate about the morality of abortion
continues. As a consequence, so does the debate about the role that
the law should play in this area.

This paper enters neither of those debates.(1)
Nor does it attempt to describe the current practice of abortion in
Australia,(2) nor how the Australian law and practice compares with
the situation in other countries.(3) These are all important
questions but they are beyond the scope of this work.

This paper instead describes the laws in each
State and Territory of Australia that make it a crime to seek,
perform or otherwise be involved in an abortion. Three broad
categories of criminal laws are explained. First, the laws that
create the crime of 'unlawful abortion'. Secondly, the laws that
create the crime of 'child destruction.' Thirdly, the law of
homicide.

(1) Laws that create the crime of 'unlawful
abortion'

Statutory provisions in every State and
Territory-except now Western Australia-make it a crime 'unlawfully'
to administer any poison or noxious thing, or use any instrument or
other means, with intent to procure miscarriage. The wording of
these statutory provisions is based directly on legislation enacted
in England in the nineteenth century. The crime of 'unlawful
abortion' may be committed by the pregnant woman herself (except in
the Northern Territory), by the person performing the abortion, or
by anyone else who assists.

In Western Australia, the recent changes to the
law repealed the old statutory provisions establishing the crime of
'unlawful abortion' and replaced them with a differently worded
provision. This new provision makes it unlawful to perform an
abortion unless it is justified under Western Australia's health
legislation. This new offence of 'unlawful abortion' may only be
committed by the person(s) involved in performing the abortion.

In any State and Territory, the statutory
provisions that prohibit 'unlawful abortion' can apply to an
abortion performed at any stage of pregnancy. The legal test for
when an abortion is not unlawful-and therefore permitted-is
different in each State and Territory of Australia.

In summary:

In Victoria, a landmark Supreme Court ruling
in 1969 ('the Menhennitt ruling') established that an abortion will
be lawful if the accused held an honest belief on reasonable
grounds that the abortion was both 'necessary' and 'proportionate.'
'Necessity' in this context means that the abortion was necessary
to preserve the pregnant woman from a serious danger to her life or
to her physical or mental health, beyond the normal dangers of
pregnancy and childbirth, that would result if the pregnancy
continued. 'Proportionate' means the abortion was in the
circumstances not out of proportion to the danger to be averted.
The Menhennitt ruling apparently permits an abortion at any stage
of pregnancy. Further, it does not appear to impose a requirement
that the abortion be performed by a medical practitioner in order
to be lawful.

Although there have been a number of occasions
in the last thirty years on which re-examination of the Menhennitt
ruling by Victorian courts was likely or possible-the
Heath case (1972), the McGoldrick case (1986),
the Backwell case (1994) and the Right to Life
case (1995)-on none of those occasions has that re-examination
occurred. The Menhennitt ruling therefore continues to represent
the legal position in Victoria.

In New South Wales, an important District
Court ruling in 1971 ('the Levine ruling') established that an
abortion would be lawful in that State if there was 'any economic,
social or medical ground or reason' upon which a doctor could base
an honest and reasonable belief that an abortion was required to
avoid a 'serious danger to the pregnant woman's life or to her
physical or mental health.' That danger might arise at any time
during the pregnancy. The Levine ruling was based on the statement
of the law in Victoria in the Menhennitt ruling, but was in the
result somewhat more liberal. Like the Menhennitt ruling, the
Levine ruling apparently permit an abortion at any stage of
pregnancy. Unlike the Menhennitt ruling, however, the Levine ruling
seems to impose a requirement that an abortion be performed by a
medical practitioner in order to be lawful.

In the decade following the Levine ruling, there
were a number of occasions on which courts in New South Wales had
(or almost had) the opportunity to re-examine or apply that ruling:
the Skinner case (1974), the Liverpool Women's Health
Centre case (1975), and the Smart case (1981). None
of those cases, however, produced any judicial disagreement with
the Levine ruling.

In the 1982 case K v. Minister for Youth and
Community Services, the Levine ruling was applied without
criticism or challenge by a judge in the Equity Division of the New
South Wales Supreme Court.

In 1994 the Levine ruling was re-interpreted and
applied in a restrictive way by a Supreme Court judge in the
Superclinics case. That case involved a legal action
brought by a woman against a medical clinic in respect of the
negligent failure to diagnose her pregnancy at a time when she
could have had an abortion. The judge in this case refused to award
her damages, on the basis that it would have been a crime for her
to obtain an abortion had she known she was pregnant at the
relevant time. This result-and the restrictive re-interpretation of
the Levine ruling that the judge applied-was overturned on appeal
by the majority of the New South Wales Court of Appeal. The
interpretation of the law given in that appeal by Kirby P now
represents the legal position in New South Wales. The Kirby ruling
is somewhat more liberal than the original Levine ruling. The Kirby
ruling does not confine permissible abortion to cases where a
serious danger to the woman's health would arise during the
pregnancy, but additionally allows consideration of threats to her
health that might arise after the child's birth. The Kirby ruling
also indicates that it would be very difficult to establish in
court that a medical practitioner lacked the requisite honest and
reasonable belief that an abortion was justified to avert a serious
danger to a woman's health.

In the Australian Capital Territory the law is
unclear. There has been no judicial ruling along the lines of those
given by courts in Victoria and New South Wales. It is generally
assumed, however, that the legal position in the Australian Capital
Territory is the same as the legal position established at any
given time by case law in New South Wales.

In Queensland, an important District Court
ruling in 1986 ('the McGuire ruling') confirmed that the
interpretation of the law offered in Victoria in the Menhennitt
ruling also applies in Queensland. This result was affirmed in the
1994 case Veivers v. Connolly, by a single judge of the
Supreme Court of Queensland.

A number of cases originating in Queensland (the
legal proceedings surrounding the 1983 case K v. T, and
the 1989 case F v. F) have also made it clear that
Australian courts will not grant an injunction to restrain a
pregnant woman from terminating her pregnancy. This is the case
even where the applicant is the putative father of the foetus.

There have been no prosecutions since 1986 under
the Queensland abortion laws in respect of terminations of
pregnancy performed in a medical context. The only case in which
those laws have been applied was the Lippiatt case in
1996, which involved a prosecution of a man who had attacked a
pregnant woman, injuring the woman and resulting in a
stillbirth.

In Tasmania, the law is very unclear. There
has been no judicial ruling clarifying the meaning of the statutory
provisions that criminalise abortion in that State.

In South Australia, legislation was enacted in
1969 that clarified and generally liberalised the abortion law in
that State. Under that legislation an abortion cannot be performed
late in pregnancy-possibly from around 22-23 weeks of pregnancy,
and certainly from 28 weeks of pregnancy-unless the abortion is
performed in good faith solely to preserve the life of the pregnant
woman. Earlier in pregnancy, however, an abortion can be performed
whenever either the 'maternal health ground' or the 'foetal
disability' ground is satisfied. The 'maternal health ground'
permits abortion if more risk to the pregnant woman's life, or to
her physical or mental health (taking into account her actual or
reasonably foreseeable environment) would be posed by continuing
rather than terminating the pregnancy. The 'foetal disability
ground' will be satisfied if there is a substantial risk that the
child would be seriously physically or mentally handicapped if the
child were born.

There has been no judicial interpretation of the
South Australian legislation. The wording of the grounds on which
an abortion will be justified under that legislation, however,
suggests that in respect of early abortions the South Australian
law is at least as liberal as the legal test in New South Wales
under the Kirby ruling.

Procedural requirements are imposed by the South
Australian legislation, however, which do not exist in New South
Wales (nor in any other Australian jurisdiction except the Northern
Territory, and Western Australia in respect of abortions after 20
weeks of pregnancy). The South Australian legislation provides that
an abortion will not be lawful unless the pregnant woman has been
resident in the State for at least two months before the abortion,
and the abortion is performed in a prescribed hospital by a
qualified medical practitioner, and a second medical practitioner
confirms that the abortion is legally justified. The procedural
requirements are waived in emergency situations, where the abortion
is immediately necessary to save the pregnant woman's life, or to
prevent grave injury to her physical or mental health. Regulations
made under the South Australian legislation impose a reporting
requirement in respect of every abortion performed in that
State.

In the Northern Territory, legislation was
enacted in 1974 along the lines of the South Australian
legislation. The Northern Territory legislation permits abortion up
to 14 weeks of pregnancy where either the 'maternal health ground'
or the 'foetal disability ground' is satisfied. These grounds are
defined in the same way as in South Australia. There has been no
case law in the Northern Territory interpreting these grounds. The
Northern Territory legislation additionally requires an abortion at
this stage of pregnancy to be carried out in a hospital, by a
gynaecologist or obstetrician, and with the support of a second
medical opinion.

Any medical practitioner may terminate a
pregnancy of up to 23 weeks, however, where the abortion is
immediately necessary to prevent grave injury to the physical or
mental health of the pregnant woman. Any medical practitioner may
perform an abortion at any stage of pregnancy if this is necessary
to preserve the pregnant woman's life.

In Western Australia, until recently the legal
position was apparently the same as in Queensland. The law was
untested, however, as there had been no judicial ruling on the
matter in Western Australia.

Legislation enacted in Western Australia in 1998
effected substantial changes to the abortion laws in that State.
Abortion remains unlawful unless it is justified under the
(amended) health legislation in that State, which now permits
abortion up to 20 weeks of pregnancy if one of four grounds is
satisfied. The first ground essentially allows abortion 'on
request,' provided a second, independent medical practitioner has
counselled the pregnant woman about any medical risks associated
with abortion and has offered to refer her for counselling about
other matters associated with the abortion. Some additional
restrictions are imposed where the pregnant patient is aged under
16. The other three grounds permit abortion where: the pregnant
woman will suffer serious personal, family or social consequences
if the abortion is not performed; serious danger to the pregnant
woman's physical or mental health will result if the abortion is
not performed; or the pregnant woman's pregnancy is causing serious
danger to her mental health.

After 20 weeks of pregnancy an abortion will
only be lawful if two doctors agree that the pregnant woman or the
foetus has a severe medical condition justifying the abortion. The
two doctors must be members of a panel appointed for this purpose
by the Minister. The abortion must be performed in a facility
approved for this purpose.

Where an abortion is unlawfully performed, the
woman herself is no longer subject to any legal sanction in Western
Australia. Where an abortion is unlawfully performed by a medical
practitioner, he or she is now liable to a fine of $50 000 rather
than imprisonment. Where an abortion is unlawfully performed by
someone other than a medical practitioner, the penalty is a maximum
of five years imprisonment.

(2) Laws that create the crime of 'child
destruction'

The separate crime of 'child destruction' only
applies to abortions performed late in pregnancy. Again, the
relevant laws are different in each State and Territory of
Australia.

In summary:

In South Australia and Victoria, it is
unlawful to act with intent to destroy 'a child capable of being
born alive' before it has an existence independent of its mother,
unless the act is done in good faith solely to preserve the
mother's life. Evidence that the woman had been pregnant for 28
weeks or more at the time of the abortion is prima facie proof that
she was carrying 'a child capable of being born alive.' Although
there is no case law on the matter in either State, relevant cases
from England suggest that these child destruction provisions might
protect foetuses as early as 22-23 weeks of pregnancy.

In Queensland, the child destruction offence
makes it a crime to prevent a child from being born alive 'when a
woman is about to be delivered of a child.' It is not clear whether
this provision only applies to abortions performed very late in
pregnancy, when a woman is about to go into labour, or whether it
may protect any 'viable' foetus. The legal situation in Queensland
is further complicated by a new 'foeticide' offence that was
enacted in 1996, and the application of which in a medical context
is unclear.

In Western Australia and the Northern
Territory, the child destruction offences are equivalent
to the relevant offence in Queensland. Again, it not clear whether
this crime only applies to abortions performed very late in
pregnancy, when a woman is about to go into labour, or whether it
may protect any 'viable' foetus.

In Tasmania, there is no crime that clearly
applies only to the termination of late term pregnancies. The legal
situation in that State is therefore very unclear.

In the Australian Capital Territory, the child
destruction offence prohibits behaviour 'occurring in relation to a
childbirth and before the child is born alive' that prevents the
child from being born alive or contributes to its death. There is
no case law interpreting the meaning of these words. It is likely,
however, that this provision only applies to abortions performed at
the very end of pregnancy, when delivery has already commenced or
is imminent.

In New South Wales, there is no child
destruction offence.

(3) The law of homicide

The law of homicide can only apply in situations
where a child is born alive. Homicide may be applicable in the
abortion context where a child is born alive but dies as a
consequence of injuries inflicted in utero during an abortion.

The provision of abortion services in Australia
is subject to the general body of laws that regulate the practice
of medicine.(4)

The lawfulness of abortion in Australia is
additionally and specifically affected by three categories of
criminal laws. The first category comprises laws that create the
crime of 'unlawful abortion'. The second category comprises laws
that create the crime of 'child destruction'. The third category
comprises the law of homicide. Each of these three categories of
laws is examined in this paper.

Before discussing these laws, it is important to
note the division in Australia between jurisdictions where the
criminal law is contained in a Criminal Code (Queensland, Western
Australia, Tasmania and the Northern Territory), and those where it
is not (Victoria, New South Wales, South Australia and the
Australian Capital Territory). In the non-Code jurisdictions, the
criminal law is determined by common law rules and also by statutes
which restate or modify those rules.

The division is important because it exacerbates
the considerable differences between the criminal laws affecting
abortion in different parts of Australia, and the uncertainties
relating to the meaning of those laws. Each of the Criminal Codes
has displaced the interpretive principles and criminal offences
contained in the common law, and replaced them with what purports
to be a comprehensive statement of the criminal law in that
jurisdiction. Decisions by courts on criminal matters in the
non-Code jurisdictions therefore are not necessarily of persuasive
authority in the jurisdictions with a Criminal Code. This does not
mean that common law doctrine and decisions are always irrelevant
when interpreting the Criminal Codes. Rather it means that it
cannot be assumed that the interpretations of the criminal law in
the non-Code jurisdictions necessarily will be viewed as persuasive
or determinative when the meaning of a provision of a Criminal Code
is being determined.(5) In general, the courts in Western Australia
and Tasmania have been more willing than the courts in Queensland
and the Northern Territory to import common law interpretations and
principles into the Criminal Code in their jurisdiction.(6)

Nor can it be assumed that the meaning of a
provision in the Criminal Code of one jurisdiction will be the same
as that of a similar provision in another Criminal Code. Of course,
the more similar the wording of the relevant provisions, the more
likely it is that they will be given similar interpretations by the
courts. As the Criminal Codes in Queensland and Western Australia
are almost identical, it would therefore be expected that the
courts in these States would most readily follow each other's
interpretation of the criminal law. The Criminal Codes in Tasmania
and the Northern Territory, however, bear less resemblance to the
other Australian Criminal Codes and indeed to each other.(7)

Finally, it is important to state that
Australian courts no longer automatically follow the
interpretations of the criminal law (or any other kind of law)
given by courts in England. This is the case even in the non-Code
jurisdictions, whose criminal laws are more directly derived
from-and more closely resemble-English statutory and common law
offences. Relevant English decisions certainly will be persuasive.
Significant differences exist, however, between the approaches of
the Australian and English courts to key aspects of the criminal
law.(8)

Statutory provisions in every State and
Territory of Australia(9)-except now Western Australia(10)-make it
a crime to 'unlawfully' administer any poison or noxious thing, or
use any instrument or other means, with intent to procure
miscarriage. This crime may be committed by the pregnant woman
herself(11) or by the person performing the abortion. It is also a
crime for anyone to supply or procure anything which that person
knows is intended to be used unlawfully to procure a miscarriage.
In Western Australia, recent changes to the law repealed the old
statutory provisions to this effect and replaced them with a
differently worded provision. This new provision makes it unlawful
to perform an abortion unless it is justified under Western
Australia's amended health legislation. This new offence of
'unlawful abortion' may only be committed by the person performing
the abortion.

For convenience only, all the relevant
Australian statutory provisions, including the new Western
Australian provision, will be referred to here as establishing the
crime of unlawful abortion.

In each State and Territory, the law provides
that the crime of unlawful abortion is punishable by lengthy
periods of imprisonment. In Victoria the penalty is five years'
imprisonment for both the woman and the abortionist and one year's
imprisonment for supplying or procuring anything to assist. In New
South Wales and the Australian Capital Territory the penalty is ten
years' imprisonment for the woman and the abortionist, and five
years for supplying or procuring. In South Australia the penalty is
life imprisonment for the woman and the abortionist, and three
years for supplying or procuring. In the Northern Territory the
penalty is seven years' imprisonment for all parties. In Tasmania
the penalty for all involved is 21 years' imprisonment and/or a
fine as determined by the court. In Queensland (and until recently
in Western Australia) the penalty is seven years' imprisonment for
the woman, 14 years for the abortionist, and three years for
supplying or procuring. Changes to the law in Western Australia
have replaced these penalties with a fine of $50 000 where the
abortionist is a qualified medical practitioner, and a penalty of
five years' imprisonment where the abortionist is not. A woman on
whom an unlawful abortion is performed is no longer subject to any
legal punishment in Western Australia.

An abortion performed at any stage of pregnancy
may involve commission of the crime of unlawful abortion.(12) This
crime therefore potentially can apply to any abortion performed in
Australia.

The wording of all these Australian statutory
provisions (except now those in Western Australia) is directly
based on statutory provisions enacted last century in England:
sections 58 and 59 of the Offences Against the Person Act 1861.(13)
These 1861 provisions replaced somewhat similar abortion provisions
in the earlier Offences Against the Person Act 1837.(14) These had
in turn replaced provisions prohibiting abortion contained in Lord
Landsdowne's Act 1828,(15) which had in their turn superseded those
in Lord Ellenborough's Act 1803.(16) Before the introduction of
Lord Ellenborough's Act, it was not a crime under English common
law to carry out an abortion before 'quickening', which was
described by Blackstone as the time when 'the infant is able to
stir in the mother's womb,' and which was generally around the
fourteenth week of pregnancy.(17)

The wording of the Australian provisions
establishing the crime of unlawful abortion indicates that there
will be circumstances in which involvement in an abortion is not
unlawful, and therefore not a crime.(18) The legal test for when an
abortion is not unlawful. however, is different in each State and
Territory of Australia.

The different Australian legal tests may be
divided into three broad groups:(19)

The legal tests in 'common law' jurisdictions.

In Victoria and New South Wales, and (by
implication only) in the Australian Capital Territory, the meaning
of unlawful abortion is entirely derived from case law.

The legal tests in 'code' jurisdictions.

In Queensland and Tasmania,(20) the Criminal
Codes that establish the crime of unlawful abortion also separately
provide for a statutory defence to that crime. In Queensland only
there is also case law interpreting the meaning of the statutory
defence and thus indicating when an abortion is not unlawful.

The legal tests in 'statutory reform' jurisdictions.

In South Australia and the Northern Territory,
legislation has been enacted that provides a statutory explanation
of when an abortion is not unlawful. There is no case law in either
South Australia or the Northern Territory that further clarifies
the meaning of unlawful in this context.

The new Western Australian legislation also
provides a statutory explanation of when an abortion is not
unlawful, for the purposes of the new offence of unlawful abortion
in that State. The Western Australian legislation is therefore
included in this third category of tests, even though it is quite
dissimilar in content and structure from the legislation in South
Australia and the Northern Territory.

The meaning of these legal tests in each State
and Territory of Australia is explained in more detail below.

Until the late 1960s and early 1970s there were
no Australian judicial or statutory explanations of when
involvement in an abortion would constitute the crime of unlawful
abortion. The meaning of unlawful in this context therefore was
highly uncertain. Some guidance, however, was provided by an
important case that came before the English courts in the
1930s.

The case was R v. Bourne.(21) It was a
test case involving the criminal prosecution of an eminent London
gynaecologist and obstetric surgeon, Mr Alec Bourne, for performing
a surgical abortion on a 14 year old girl who had been raped. In
his address to the jury at the Old Bailey in that case, Macnaghten
J held that an abortion would not be unlawful, within the terms of
section 58 of the Offences Against the Person Act 1861, if the
operation were performed for the purpose of preserving the pregnant
woman's life.

He reached this conclusion by referring to the
offence of child destruction contained in the Infant Life
(Preservation) Act 1929, section 1.(22) The statutory proviso to
that offence provides that a person will not be guilty of child
destruction if they have acted in good faith for the purpose of
preserving the life of the mother.(23) Macnaghten J was of the
opinion that a similar proviso should be read into section 58 of
the Offences Against the Person Act 1861, despite the absence of
those particular words in that section. Thus, a person would not be
guilty of the crime of unlawful abortion if they had acted in good
faith to preserve the life of the mother. Glanville Williams
subsequently argued that Macnaghten J's interpretation of section
58 relied on the defence of necessity:

Mcnaghten J's direction is also a striking
vindication of the legal view that the defence of necessity applies
not only to common law but even to statutory crimes. It is true
that the direction proceeded in some slight degree on the analogy
of the child destruction statute, which contains an express
exemption for the preservation of the life of the mother; but the
exception in the one statute was not in itself a ground for reading
a similar exception into another. The only legal principle on which
the exception could be based was the defence of necessity...The
defence of necessity involves a choice of values and a choice of
evils, and the choice made by the judge appears clearly from his
statement that 'the unborn child in the womb must not be destroyed
unless the destruction of that child is for the purpose of
preserving the yet more precious life of the mother.' Apparently
the interest of the mother in living a single extra day is
preferred to the life of the child.(24)

According to Macnaghten J, the jury could
conclude that a doctor had operated for the purpose or preserving
the pregnant woman's life if the doctor had held 'the opinion, on
reasonable grounds and with adequate knowledge, that the probable
consequence of the pregnancy would be to make the woman a
physical or mental wreck.'(25)

Macnaghten J's interpretation of the law
therefore did not confine permissible abortions to those performed
to save a woman's life in the strictest sense: the sense of saving
her from 'instant death'.(26) His interpretation also allowed
abortions performed to save a woman's health from being 'wrecked'.
Wreckage remained undefined,(27) but there was little doubt that
Macnaghten J's test demanded a very high level of danger to health
before abortion would be justified.(28) The test limited
permissible abortions to those for 'saving the life or preserving
the longevity of the mother.'(29) In the jury's opinion the
abortion performed by Mr Bourne had satisfied this test, and he was
acquitted of the charge against him.

This meaning given to unlawful in this context
by Macnaghten J represented a considerable liberalisation of
English abortion law, as until R v. Bourne there was
thought to be no common law defence implied in sections 58 or 59 of
the Offences Against the Person Act 1861.(30) The defence outlined
by Macnaghten J nonetheless was restrictive.

Two subsequent English cases may have further
liberalised the test in R v. Bourne, by moving the legal
emphasis away from concern solely with preserving the pregnant
woman's life, to introduce preserving her health as an alternative
legal justification for abortion.(31) The first was the 1948 case
R v. Bergman and Ferguson.(32) Morris J's address to the
jury in this case was interpreted as indicating 'that where serious
injury to health is feared the court will not look too narrowly
into the question of danger to life.'(33) The second case was the
1958 case R v. Newton and Stungo.(34) In that case,
Ashworth J stated that abortions could be lawfully performed '...
in good faith for the purpose of preserving the life or health of
the woman.' He then went a little further: 'When I say health I
mean not only her physical health, but her mental health.'

Notwithstanding these two cases, the statement
of the law in R v. Bourne was widely assumed to represent
the legal position throughout the United Kingdom, until the
Abortion Act 1967 effected substantial further liberalisation of
the abortion law in England, Wales and Scotland.(35)

It was also widely assumed that R v.
Bourne represented the legal position in Australia. This
assumption was not challenged in any Australian court until
1969.

The 'common law jurisdictions': judicial
reform

Victoria

The Menhennitt ruling

Judicial reform of the Australian law regulating
abortion began in 1969 in Victoria. In that year, Menhennitt J of
the Supreme Court of Victoria delivered his landmark ruling in the
case of R v. Davidson.(36) The case involved the
prosecution of a Melbourne doctor, Dr Ken Davidson, under the
Victorian statutory provisions that criminalise unlawful abortion.
Specifically, he was charged under section 65 of the Crimes Act
1958 (Vic), with four counts of unlawfully using an instrument
to procure a miscarriage, and with one count of conspiring
unlawfully to procure a miscarriage.

Menhennitt J explicitly invoked the general
legal defence of necessity(37) and instructed the jury that acting
with intent to procure a miscarriage would only be lawful if the
accused held an honest belief on reasonable grounds that the
abortion was both 'necessary' and 'proportionate'. The onus lay
upon the Crown to establish unlawfulness by proving the absence of
either necessity or proportion.(38) 'Necessary' in this context
meant the abortion was necessary to preserve the pregnant woman
from a serious danger to her life or to her physical or mental
health, beyond the normal dangers of pregnancy and childbirth, that
would result if the pregnancy continued. 'Proportionate' meant the
abortion was in the circumstances not out of proportion to the
danger to be averted.(39) The jury applied Menhennitt J's
interpretation of the law and acquitted Dr Davidson of the charges
against him.

The interpretation of unlawful adopted by
Menhennitt J in R v. Davidson was less restrictive than
the test established in the earlier English case of R v.
Bourne. The Menhennitt ruling permitted abortion to avert a
'serious danger' to the pregnant women's health, thereby
considerably reducing the level of danger to health required before
an abortion could be performed lawfully. The Menhennitt ruling by
no means established, however, that the law allowed a doctor to
perform an abortion on other than health grounds. It certainly did
not permit abortion on the basis that the pregnant woman simply did
not wish to continue with the pregnancy.

The Menhennitt ruling was silent on the question
of whether an abortion could only be performed lawfully if the
procedure itself was being performed by a qualified medical
practitioner. On one view, the Menhennitt ruling implicitly imposed
this as a legal requirement. On another view, the fact that the
accused in R v. Davidson happened to be a doctor did not
mean the legal test outlined by Menhennitt J would be inapplicable
to situations where an abortion was performed by someone other than
a doctor.

Missed opportunities to re-examine the
Menhennitt ruling: the Heath, McGoldrick, Backwell and Right to
Life cases

Menhennitt J's statement of the law in R v.
Davidson continues to represent the legal position in
Victoria. There has been no judicial re-examination of the meaning
of unlawful abortion in Victoria since that case. There have,
however, been four occasions on which such re-examination was
likely or possible.

The first occasion was a criminal case that came
before Southwell J of the Victorian County Court in 1972. In that
case, R v. Heath,(40) a doctor was prosecuted for
performing eight allegedly unlawful abortions. In the face of
expert medical evidence that failure to terminate these pregnancies
would have exposed the women in question to serious risk of injury
to their physical or mental health, the jury acquitted the accused
doctor of one charge. It could not reach agreement, however, on the
other seven charges. The prosecution then decided not to continue
its case against the doctor in respect of these unresolved charges.
This result may be read as an acknowledgment that application of
the Menhennitt ruling in this case would not produce a conviction.
Perhaps more importantly, it may be read as an acknowledgment that
a conviction of this doctor on the basis of any other
interpretation of the law would not survive appeal to a higher
court, because the view of the law advanced in R v.
Davidson would be upheld if so challenged.

The second occasion was the investigation in
1986 of the abortion practice of a Melbourne doctor, Dr Ian
McGoldrick. He was charged under the Victorian provisions that
criminalise unlawful abortion. It was alleged that Dr McGoldrick
had carried out abortions without holding an honest and reasonable
belief that the terminations were necessary to preserve the life or
health of the women in question. The charges were dismissed in June
1987 and therefore resulted in no judicial comment on the
Menhennitt ruling.(41) Again, this result may be read as an
acknowledgment both of the unlikelihood of convicting this
defendant under the Menhennitt ruling, and of the unlikelihood that
a superior court would offer a different interpretation of the
law.

The third occasion was a civil case that
ultimately came before the Victorian Court of Appeal in 1994. This
case, Backwell v. AAA,(42) involved a successful
negligence action brought by a woman in respect of treatment she
had received on a donor insemination program in 1983. The program
was run at an infertility clinic in Melbourne with which the
defendant, Dr June Backwell, was associated. The plaintiff had
joined the program because she had suffered eight early
miscarriages in 20 months due to extreme tissue incompatibility
with her husband. She also suffered from Rh-disease which meant
that she needed to be inseminated with semen from an Rh-negative
donor to prevent severe complications in any subsequent pregnancy.
On the donor insemination program, the plaintiff was inadvertently
inseminated with donor semen intended for another patient. That
semen came from a donor who was Rh-positive and of a different
racial origin from the plaintiff's husband.

The plaintiff was subsequently diagnosed as
pregnant. She claimed that Dr Backwell had then told her she would
have to terminate the pregnancy, because: she would not be able to
pass the child off as her husband's (the sperm donor was of
Spanish/Egyptian origin and her husband was not); 'if the press got
hold of it the clinic would be closed down'; the press would
'hound' the plaintiff; and, if she did not have the abortion, she
would not continue to receive treatment at the clinic and would
never get onto any other infertility program in Australia.(43)

Dr Backwell admitted she had made these
statements and that they were threats. She claimed, however, that
she had been motivated only by the plaintiff's well-being as she
believed that it was inadvisable for the plaintiff to continue a
pregnancy that could involve complications due to Rhesus
incompatibility.(44) Dr Backwell also admitted that she had failed
to discuss matters with the plaintiff that she should have
discussed if she had been acting in the plaintiff's best interests
at the time. These matters were: the plaintiff's previous history
of miscarriages; her views about abortion, and her religious or
moral beliefs (she was a Roman Catholic and believed abortion was
wrong); and what the plaintiff's husband might think about the
situation.(45)

The plaintiff further alleged that Dr Backwell
had improperly failed to advise her of the following: that there
was a chance the pregnancy had resulted from earlier inseminations
with the correct semen, that if the pregnancy was due to
insemination with the wrong sperm there was likely to be a
spontaneous miscarriage, that tests could be carried out to
determine whether the foetus was Rh-positive, and that counselling
would assist the plaintiff.(46) The plaintiff gave evidence that
the result of Dr Backwell's behaviour was that she believed she had
no alternative to terminating the pregnancy. Accordingly, she
sought and obtained an abortion. Since the abortion had been
performed, the plaintiff had suffered from anxiety and clinical
depression.

The plaintiff alleged that Dr Backwell had
provided her with negligent treatment. First, because she had been
responsible for the incorrect insemination of the plaintiff, and
secondly, in respect of her subsequent behaviour towards the
plaintiff. She claimed that that subsequent behaviour had shown a
'contumelious, arrogant and wanton disregard for the plaintiff' and
had been motivated by profit and preservation of her own reputation
and character at the expense of the plaintiff's well-being.(47) The
plaintiff sought damages to compensate her for the physical and
psychiatric injuries she had suffered as a result of Dr Backwell's
allegedly negligent behaviour. She also sought exemplary
damages-damages that are awarded to punish a defendant and act as a
deterrent-in respect of Dr Backwell's response to the incorrect
insemination and subsequent pregnancy.

The jury accepted the plaintiff's version of
events and agreed that Dr Backwell had been negligent in these
respects and awarded the plaintiff compensatory damages of $60 000
and exemplary damages of $125 000, plus interest. This was the
first Australian case in which exemplary damages have been awarded
in respect of the behaviour of a doctor towards a patient.(48) The
defendant appealed against this award to the Full Court of Appeal
of Victoria. The Court of Appeal agreed that Ashley J had erred in
aspects of his charge to the jury on the question of exemplary
damages and reduced the damages award. The Court of Appeal
affirmed, however, that Dr Backwell's behaviour called for 'the
most severe condemnation' and for 'a substantial award of exemplary
damages'.(49) The plaintiff therefore was awarded $60 000 by way of
exemplary damages.

This not inconsiderable amount of money was
awarded to punish behaviour that had amounted to a coercive and
threatening interference with the plaintiff's decision about
whether to continue this pregnancy. To some extent, therefore, the
result in this case may be seen as legal recognition of the
plaintiff's right to be given the opportunity to make her own
decision about continuing her pregnancy, in accordance with her
personal and strongly held beliefs about the morality of
abortion.

That statement is qualified because none of the
judges in this case discussed the extent to which their implicit
recognition of this legal right in this context might be
inconsistent with the existence of the Victorian provisions that
criminalise unlawful abortion. Such discussion could have led to a
more liberal reassessment of the Menhennitt ruling. Alternatively,
it could have led to an affirmation or restriction of that ruling,
and a cogent explanation of why it is deemed appropriate for the
criminal law to intrude upon a women's decision-making about
abortion. The Victorian judges' failure to provide any such
clarification was something of a disappointment. The unusual facts
of the case had provided the most senior court in Victoria with a
rare opportunity to point out-or justify-the inconsistency of
characterising a woman's abortion decision as one that must be
respected, because it is highly personal to that woman and her
sense of morality, in one legal context but not in another.

An application for special leave to appeal to
the High Court against the decision in Backwell v. AAA was
refused on 5 August 1996.

The fourth occasion on which there was an
opportunity for judicial re-examination of the meaning of unlawful
abortion in Victoria was an administrative law case that came
before the Federal Court of Australia in 1994 and 1995. The case
was Right to Life Association (NSW) Inc v. Secretary,
Department of Human Services and Health and Another.(50) The
litigant in this case was the Right to Life Association (NSW), a
'pro-life' lobby group. In 1994 it initiated a legal action in the
Federal Court of Australia challenging the failure of the Secretary
of the Commonwealth Department of Human Services and Health to halt
clinical trials in Sydney and Melbourne of the drug mifepristone
(also known as RU486 or the 'abortion pill'). The trials, which
formed part of a multi-centre study organised by the World Health
Organization, involved administration of RU486 to test its efficacy
as a post-coital contraceptive and as an abortifacient. RU486 has
not been approved for general clinical use in Australia, and no
application for approval has yet been submitted.

In 1994 the Right to Life Association had
written to the Secretary of the Department of Human Services and
Health, alleging that the conduct of the trials contravened the
State laws in New South Wales and Victoria that criminalise
unlawful abortion, and asking him to stop the trials. The
Secretary's written reply advised that 'certain abortions are legal
in both NSW and Victoria', that there was no evidence that the
abortion laws were not being complied with, and that accordingly he
would not stop the trials.(51)

The Right to Life Association sought review of
this refusal under the Administrative Decisions (Judicial
Review) Act 1977 (Cwth). It based its claim on regulations
made under the Therapeutic Goods Act 1989 (Cwth) that
impose conditions on therapeutic goods used solely for experimental
purposes in humans, including the following:

...the Secretary must not, at any time:

(i) have become aware that to conduct or
continue the trial would be contrary to the public interest;
and

(ii) have directed that the trial not be
conducted, or be stopped...(52)

The Right to Life Association argued that this
condition imposed an obligation on the Secretary to investigate
possible breaches of the State criminal law in Victoria and New
South Wales relating to abortion, because such breaches would be
'contrary to the public interest', and that the Secretary had not
discharged this obligation. The Right to Life Association
accordingly sought:

a declaration that RU486 was being used in the trials as an
abortifacient and the trials therefore were contrary to the public
interest;

a declaration that the conduct of the trials involved breaches
of the criminal provisions in New South Wales and Victoria that
criminalise unlawful abortion; and

an order that the Secretary further consider his decision
according to law.(53)

A single judge of the Federal Court of
Australia, Lindgren J, dismissed the Right to Life Association's
application.(54) In February 1995 this result was upheld by the
Full Federal Court comprising Lockhart, Beaumont and Gummow JJ.(55)
Lindgren J at first instance reached his conclusion on the basis
that the Right to Life Association lacked standing to bring the
administrative law challenge, as it was not a 'person aggrieved'
under the Administrative Decisions (Judicial Review) Act
1977 (Cwth). On appeal, Lockhart and Beaumont JJ agreed that
the action must fail because the litigant lacked standing.
Gummow J also concluded that the application for review must
fail, but did so on the basis that there had been no reviewable
'decision' by the Secretary, and that it therefore was unnecessary
to decide the standing issue. Lindgren, Lockhart and Gummow JJ also
agreed that the Secretary had been under no positive obligation to
investigate possible breaches of State law, Beaumont J holding it
was preferable not to decide this question. No judge, however,
examined the merits of the Right to Life Association's arguments
concerning the alleged unlawfulness of the clinical trials.

The Federal Court therefore did not make any
clarifying statements about the legal position in both Victoria and
New South Wales in relation to unlawful abortion. A clarification
of that law would have been both useful and timely, given the doubt
that had been created several months earlier by the Newman ruling
in New South Wales,(56) and which presumably had partly motivated
the Right to Life Association to initiate these proceedings. The
only hint offered by the Federal Court as to its possible
interpretation of the abortion laws in Victoria and New South Wales
was contained in the judgment of Lockhart J:

It is not difficult to find examples in history
where laws on the statue book have become outmoded and crimes that
were theoretically grave crimes punishable by heavy penalties were
in fact rarely, if ever, the subject of prosecution because the
thinking of society had undergone a change which had not yet found
its way into legislative reform. Merely to say that a State (or
Territory) law may be infringed if the drug Mifepristone is used in
the conduct of experiments with respect to human beings would be a
criminal offence under State law does not necessarily conclude the
question of public interest.(57)

Lockhart J went on, however, to expressly
decline to examine the issue further. While averting to 'a debate
as to whether the relevant criminal statutes which prohibit
unlawful abortion apply in circumstances where the
abortion is necessary in the interests of the health of the
mother', he concluded that '[n]o necessary or useful purpose is
served by examining that question further'.(58)

The Federal Court was able to avoid addressing
the abortion question because of the position it adopted on the
standing question. That position was that the Right to Life
Association was not a 'person aggrieved' with standing to challenge
the Secretary's decision because it had not demonstrated that it
was affected by the decision in any way to an extent greater than
the public generally.(59) In reaching this result, however,
Lockhart J adopted an approach to interpretation of 'a person
aggrieved' that can be described as a reversal of a trend in
Australian administrative law towards a more liberal interpretation
of that phrase for the purposes of the ADJR Act.(60)
Gummow J adopted a similarly restrictive approach to the meaning of
'a person aggrieved', although his comments were obiter only as he
did not consider it necessary to decide the standing question.(61)
In the Full Federal Court, only Beaumont J adopted an
interpretation of 'a person aggrieved' that was consistent with the
trend toward liberalising the approach to standing under the
ADJR Act.(62)

Given that even the more liberal approach to
standing applied by Beaumont J led to a conclusion that the Right
to Life Association was not 'a person aggrieved', it would be going
too far to state that Lockhart and Gummow JJ's more restrictive
approach was influenced by a desire to deny standing to an interest
group whose focus is opposing abortion. It would not be going too
far, however, to conclude that the approach of these judges in the
Right to Life case could make it more difficult for other
interest groups-including 'pro-choice' and other 'pro-life'
abortion lobby groups-to bring actions under the ADJR
Act.

These problems aside, the result in the
Right to Life case was consistent with the general
principle that civil courts are reluctant to interfere with matters
relating to the criminal law, as possible breaches of State
criminal law are matters for the State prosecuting authority.(63)
Courts in Australia and England have applied this principle
invariably to refuse to intervene at the request of individual
third parties to stop the performance of an allegedly unlawful
abortion.(64) This has been the case even where the third party is
the putative father of the foetus.(65) The Right to Life
case therefore supports this line of judicial authority.

New South Wales

The Levine ruling

The test outlined in R v. Davidson was
followed in New South Wales in 1971 in the landmark case R v.
Wald.(66) This important case also involved an unsuccessful
prosecution of five people under the New South Wales provisions
that make unlawful abortion a crime.(67) The accused were a doctor
and an anaesthetist who performed abortions at the Heatherbrae
abortion clinic in Bondi, an orderly at the clinic, the owner of
the clinic premises, and a doctor who referred patients to the
clinic. The defendants in this case were prosecuted for unlawfully
using an instrument with intent to procure the miscarriage of a
woman contrary to section 83 of the Crimes Act 1900 (NSW),
with conspiring to commit such an offence, and with aiding and
abetting the commission of such an offence.

In his address to the jury in this case, Levine
DCJ of the District Court of New South Wales adopted, but then
expanded and liberalised, the earlier Menhennitt ruling. He did
this by stating that a doctor could consider the effects of
economic and social factors upon the health of the pregnant woman,
when assessing whether a proposed abortion would be 'necessary' and
'proportionate' in the circumstances.

Thus, according to Levine DCJ, an abortion would
be lawful if there was 'any economic, social or medical ground or
reason' upon which a doctor could base an honest and reasonable
belief that an abortion was required to avoid a 'serious danger to
the pregnant woman's life or to her physical or mental health'. The
accused need not have believed that the woman's health was in
'serious danger' at the time of consultation, merely that her
health 'could reasonably be expected to be seriously endangered at
some time during the currency of the pregnancy, if
uninterrupted.'(68)

The Levine ruling expanded the grounds on which
a doctor was permitted to conclude that a pregnant woman faced a
risk to her health, and in this respect was somewhat more liberal
than the earlier Menhennitt ruling in Victoria. The Levine ruling
retained the requirement that she face a 'serious danger' to her
health before abortion would be justified. Like the Menhennitt
ruling, therefore, the Levine ruling only authorised abortion on
health grounds. It did not authorise abortion in any case where a
doctor was willing to accede to a pregnant woman's request that her
pregnancy be terminated. This was despite assertions by counsel for
the accused in R v. Wald that abortion should only be
considered unlawful in New South Wales if performed on a pregnant
woman without her proper consent.(69) Levine DCJ did not accept
this argument.

Unlike the Menhennitt ruling, however, the
Levine ruling does apparently impose a requirement that the
termination procedure be performed by 'duly qualified medical
practitioners' in order to be lawful.(70)

In the decade following the Levine ruling, there
were three important occasions on which courts in New South Wales
had (or almost had) the opportunity to re-examine or apply the
Levine ruling. None of these cases produced any judicial
disagreement with the interpretation of the law that had been
offered in R v. Wald.

The first case involved the prosecution and
conviction in December 1972 of Dr Rellee Skinner for conspiring to
unlawfully procure the miscarriage of two women, who he had
referred for their abortions to a person without medical
qualifications. In 1974 Dr Skinner successfully appealed to the New
South Wales Court of Appeal against his subsequent removal from the
register of medical practitioners. In the course of its judgment in
this case, the Court of Appeal stated that 'the conception of the
law relating to abortion which was prevalent at the time of the
offences [has] since [been] shown to be erroneous,' and that the
situation of the two women 'would have warranted therapeutic
abortions according to the principles established in the courts
over the last two or three years.'(71) The court also noted that
the fact that abortion was now legally available for therapeutic
purposes now meant it was most unlikely that Dr Skinner would
repeat the offence of referring women to unqualified
practitioners.(72) These statements, and the court's decision to
reinstate Dr Skinner on the basis that it was in the public
interest that he should resume medical practice, imply agreement
with the interpretation of the law offered by Levine DCJ in R
v. Wald.

The second case resulted from an abortion that
was performed in 1975 at the Liverpool Women's Health Centre on a
151/2 year old without the knowledge or permission of her parents.
The doctor who had performed the abortion was charged with
unlawfully procuring a miscarriage under section 83 of the
Crimes Act 1900 (NSW), and a nurse who worked at the
clinic was charged with aiding and abetting. Both defendants were
committed for trial, but the charges were subsequently dropped.
There was therefore no opportunity for a court to address the
argument that the defendants had acted unlawfully, on the basis
that the doctor had concluded the abortion was required to avert
damage to the pregnant girl's mental and physical health without
actually examining the patient herself, but solely in reliance on
discussions the girl had had with the nurse.(73)

The third case was the 1981 prosecution and
conviction in the New South Wales District Criminal Court of Dr
George Smart in relation to an abortion he had performed on a 17
year old. She had been seven months' pregnant at the time and no
other medical practitioner would agree to terminate the pregnancy.
The evidence indicated that Dr Smart had not asked her about the
state of her physical or mental health, within the terms of the
Levine ruling, before performing the procedure. The medically
unorthodox method that Dr Smart had used to perform this abortion
(suction curette, then forceps) had killed the foetus but failed to
extract it, and had necessitated hospitalisation of the woman and
the performance of emergency surgery on her. Dr Smart's conviction
under section 83 of the Crimes Act 1900 (NSW) made him the
first-and to date only-medical practitioner in New South Wales to
be convicted for unlawfully procuring a miscarriage. Dr Smart
appealed against his conviction to the New South Wales Court of
Criminal Appeal, but his ill health and subsequent death meant that
this court never heard the case. Had that court done so, it
presumably would have commented on whether the Levine ruling
represented the correct interpretation of when an abortion is
lawful in New South Wales, and in respect of precisely which
aspects of Dr Smart's behaviour legal sanction was
appropriate.(74)

The Helsham Ruling

The Levine ruling was next considered by a New
South Wales court in the 1982 case K v. Minister for Youth and
Community Services.(75) That case involved a 151/2 year old
who was a ward of the State. She was 12 weeks pregnant and wished
to have an abortion. Her guardian, the Minister for Youth and
Community Services, refused to give permission for this to happen.
The only reason he gave for his refusal was that he considered it
was too late for the abortion to be lawfully performed. The ward's
mother initiated legal proceedings on her daughter's behalf,
seeking court orders to enable the procedure to be performed.
Helsham CJ in the Equity Division of the NSW Supreme Court granted
such orders. He did so in exercise of the court's inherent or
parens patriae jurisdiction to intervene to ensure that
decisions are made in a minor's best interests. The orders directed
the Minister to give all necessary consents to enable the ward to
be released from her residential institution for the purpose of
terminating the pregnancy.

In the course of his judgement, Helsham CJ
rejected the suggestion that the proposed abortion would be
unlawful. He based this opinion on the assumption that the Levine
ruling represented the correct statement of the law in New South
Wales. He made that assumption because the Minister had not
challenged the Levine ruling in his submissions to the court.
Helsham CJ recalled that the Levine ruling allows an abortion to be
performed where there is an honest belief on reasonable grounds
that the procedure is:

necessary to preserve the woman involved from
serious danger to her life or physical or mental health and that in
the circumstances the danger of the operation [is] not out of
proportion to the danger intended to be averted.(76)

He also reiterated that '[r]easonable grounds
can stem from social, economic or medical bases.'(77) In applying
the Levine test to the facts of this case, he concluded there was
'ample' evidence that 'the social and medical situation of this
girl' constituted reasonable grounds to justify an abortion under
the Levine ruling.(78) He further concluded that this evidence also
indicated that it was vital to the ward's welfare that her request
for an abortion be granted:

...the adverse effects on her of being forced to
bear her child are likely to be so grave that they make it
essential. She is fifteen and a half and has been up against it all
her life. Those who are best placed to judge the likely social and
psychological effects of being forced against her will to carry
this child have all advised that the pregnancy be terminated.
...Acting as far as possible as I think a wise parent would act in
all the circumstances I ...will permit this girl to have an
abortion.(79)

The Newman ruling

The Levine ruling was not the subject of any
judicial challenge or criticism until 1994. In April of that year,
however, the precise meaning of the Levine ruling was cast into
doubt when Newman J of the Supreme Court of New South Wales
delivered his judgement in the civil case CES and Another v.
Superclinics (Australia) Pty Ltd.(80)

The plaintiff in the Superclinics case
was a woman who became pregnant in 1986. At the time she was 21
years old and a full-time student with limited financial resources.
Although she visited a medical clinic five times to discover why
she had not menstruated, her pregnancy was not diagnosed until she
was at least 19 weeks pregnant. She was advised that performing an
abortion on her at that stage of pregnancy would be medically
unsafe. She therefore proceeded with the pregnancy and gave birth
to a healthy child.

After the child's birth the plaintiff was unable
to continue her studies for financial and personal reasons. Her
relationship with the child's father was not stable and ended
around a year after the child's birth. Some time after this she
began receiving psychiatric treatment for anxiety and clinical
depression, associated with ambivalent feelings towards her
daughter and inability to come to terms with the way this unwanted
pregnancy had affected her life.

The plaintiff brought a civil action against the
proprietor of the clinic and the clinic doctors. She alleged they
had been negligent in their failure to diagnose and inform her
about her pregnancy. She claimed that as a result of these failures
she was denied the opportunity to have an abortion performed at a
time when it was medically safe to do so, and that this had
resulted in her giving birth to a child she did not want. She
argued that she should be compensated for the losses she suffered
as a consequence of not being able to choose to terminate her
pregnancy. These losses included the costs of raising the
child.

Although there had been earlier rulings by
courts in New South Wales indicating that parents of a disabled
child have the right to recover damages if a doctor's negligence
deprived them of the opportunity to abort,(81) there was no case
law in that State establishing that the parents of a healthy child
have such a right.(82) The central and obvious issue in the
Superclinics case therefore was whether, as a matter of
public policy in New South Wales, the parents of a healthy child
should be compensated for the negligent deprivation of the
opportunity to prevent the child's birth by terminating the
pregnancy.

Newman J did not discuss this central and
obvious issue. Instead, he surprised everyone-including the
defendants, who had not pleaded the defence of illegality-by using
a reinterpretation of the New South Wales provisions that
criminalise unlawful abortion to refuse to award damages to the
plaintiff.(83)

Newman J concluded that, although the clinic
proprietor and doctors responsible for the care of the plaintiff
had breached the legal duty of care they owed her, damages could
not be awarded because all she suffered as a result was the loss of
an opportunity to perform an illegal act. That illegal act was the
abortion she would have sought had she known earlier that she was
pregnant. Newman J stated that allowing the plaintiff to receive
damages in this case would be as 'grotesque' as allowing a bank
robber to be compensated for the negligent behaviour of another
person involved in the robbery.

It was Newman J's opinion that, had the abortion
that the plaintiff had no opportunity to seek in fact taken place,
it would have violated the New South Wales provisions that
criminalise 'unlawful abortion'. He reached this conclusion on the
basis that there was no evidence before him to suggest that the
plaintiff's life or her physical or mental health was seriously
endangered by her pregnancy, as required under the Levine ruling
for an abortion to be lawful.

The plaintiff had not asserted that the
pregnancy had posed a risk to her life or to her physical health.
She had claimed, however, that the abortion would have been lawful
on the basis that there was evidence the pregnancy had posed a
serious danger to her mental health. In rejecting this argument,
Newman J indicated that nothing less than evidence from a
psychiatrist consulted by the pregnant woman during her pregnancy
would have convinced him there was a serious danger to her mental
health. There was no such evidence in this case as the plaintiff's
general practitioner had not referred her to a psychiatrist during
her pregnancy. Evidence from the plaintiff's general practitioner
that there had been a serious danger to her mental health was not
enough, according to Newman J, to satisfy the test in R v.
Wald. Nor was the fact that the plaintiff had been referred
for psychiatric assessment and treatment after the birth
of her child as a result of continuing with this unwanted
pregnancy.

Additionally and controversially, Newman J made
no reference to, or assessment of, social and economic factors that
might have indicated that continuing with the pregnancy would have
posed a serious danger to the mental health of the plaintiff.

Despite citing and purporting to follow the test
in R v. Wald, therefore, Newman J provided a more
restrictive definition than had Levine DCJ of when an abortion
would be lawful in New South Wales. He did this by narrowing the
circumstances in which it could be shown that an abortion was
justified to avert a 'serious danger' to the pregnant woman's
mental health. His ruling seemed to introduce an entirely new
procedural requirement: in order for an abortion to be performed
lawfully under this ground, the need for the abortion to avert the
danger to the woman's mental health must have been confirmed by a
psychiatrist, who had examined the woman prior to the abortion.
Newman J's ruling also left considerable doubt as to when, if ever,
social and economic factors could be said to pose a sufficiently
serious danger to a pregnant woman's mental health to justify an
abortion and render it lawful.

One of the consequences of Newman J's approach,
therefore, was widespread doubt and speculation in New South Wales
as to exactly when an abortion would be lawful. All that was
certain was that his reinterpretation and application of the
relevant law was far stricter than that offered by Levine DCJ two
decades years earlier. A second, and less widely discussed,
consequence of Newman J's approach was that no woman suing health
care providers in respect of injuries inflicted during a
negligently performed abortion would be able to recover
compensation, unless she was able to prove that the abortion had
been lawfully performed according to Newman J's strict but
ill-defined test.

The Kirby ruling

An appeal against the findings of Newman J in
the Superclinics case was heard in 1995 by the Court of
Appeal of New South Wales. The court delivered its judgment in
September 1995.(84) By a majority of 2:1, it overturned Newman J's
conclusion that illegality barred the plaintiff from being awarded
damages for the consequences of her lost opportunity to
abort.(85)

Kirby A-CJ and Priestley JA both stated that
Newman J had erred in concluding the abortion that would have been
sought by the plaintiff would have been unlawful. They both held
that the evidence did not justify Newman J's conclusion that the
hypothetical abortion the woman would have sought necessarily or
probably would have been unlawful under the Levine ruling. The
third judge, Meagher JA, supported Newman J's interpretation and
application of the Levine ruling.

Of these three judges, only Kirby A-CJ offered a
detailed discussion and analysis of the test advanced in R v.
Wald. His view of when an abortion is not unlawful in New
South Wales was in the result more liberal than both the Newman
ruling and the Levine ruling.

First, Kirby A-CJ emphasised that a referral to
a psychiatrist was not necessary to establish there had been a
serious danger to a pregnant woman's mental health for the purposes
of the Levine ruling. He criticised Newman J's failure to accept
the evidence given by the plaintiff's general practitioner that
such a danger existed.(86)

Secondly, Kirby A-CJ made it clear that, under
the Levine ruling, a doctor is entitled to consider social and
economic factors when assessing whether a woman's mental health
would be seriously endangered if her pregnancy continued.(87)

Thirdly, Kirby A-CJ liberalised the Levine
ruling, stating that the serious danger to a pregnant woman's
health should not be limited to dangers that would arise during the
pregnancy. He stated that although the Levine ruling did seem to
assert that only dangers that would arise during the pregnancy were
relevant to the lawfulness of an abortion, such a limitation was
not justified:

There seems to be no logical basis for limiting
the honest and reasonable expectation of such a danger to the
mother's psychological health to the period of the currency of the
pregnancy alone. Having acknowledged the relevance of other
economic or social grounds which may give rise to such a belief, it
is illogical to exclude from consideration, as a relevant factor,
the possibility that the patient's psychological state might be
threatened after the birth of the child, eg due
to the very economic and social circumstances in which she will
then probably find herself. Such considerations, when combined with
an unexpected and unwanted pregnancy, would, in fact, be most
likely to result in a threat to the mother's psychological health
after the child was born when those circumstances might be
expected to take their toll.(88)

In support of this reinterpretation of the law,
Kirby A-CJ cited the similar conclusion reached by de Jersey J of
the Supreme Court of Queensland in Veivers v.
Connolly,(89) a judgment delivered several months after the
Newman ruling in 1994.

Kirby J went on to find that Newman J therefore
had erred in not considering the effect that the plaintiff's
economic and social circumstances were likely to have on her mental
health after the birth of her child. According to Kirby A-CJ, this
had lead Newman J wrongly to conclude that an abortion sought by
the plaintiff would have been unlawful:

[There was] evidence before Newman J that the
plaintiff's mental health had been seriously affected in a
perfectly predictable way after the birth of the child. This was
the result of the combined pressures of having an unwanted baby
when in an unstable emotional relationship. This had, in turn,
forced her to give up her studies. It had prevented her from
obtaining full-time employment in her chosen discipline. The
effects of such factors both on the mother's mental health ... are
not to be trivialised. Nor are they unusual in today's
society.(90)

Fourthly, Kirby A-CJ pointed out that it would
be very difficult, in any criminal prosecution of a doctor for
unlawfully terminating a pregnancy, to persuade a jury that the
doctor lacked an honest and reasonable belief that there was a
serious danger to a woman's mental health. He attributed this
difficulty partly to the essentially subjective nature of the
'honest and reasonable' belief that must be shown to be absent
before the unlawfulness of an abortion can be established.(91) He
pointed out that the case law had not established a list of
criteria against which the honesty and reasonableness of the
doctor's belief could be assessed. Kirby A-CJ further argued that
it would be undesirable and indeed impossible to provide such a
list given the 'wide variety of particularities', including social
and economic factors, which will arise for consideration in each
case.(92) He also noted that individual doctors do not agree as to
when a pregnancy poses a sufficiently serious danger to a woman's
mental health to justify its termination. He then inferred that any
jury assessing whether a doctor had possessed the requisite 'honest
and reasonable' belief must be influenced by the fact that some
Australian doctors would much more readily conclude than others
that a pregnant woman's mental health was seriously threatened by
her pregnancy:

... Beliefs as to the relative danger posed to
the mental health of a pregnant woman wishing to terminate a
pregnancy will inevitably vary. For example, they may vary
according to the particular institutions and medical practitioners
consulted. Some, for reasons of religious instruction or personal
conscience, could not conceive of any circumstances where
termination would be necessary or proportionate. But even in
institutions and among medical practitioners (probably the
majority) who do not take this strict view, variations will occur.
This would be so particularly by reference to the changing economic
and social conditions of Australian society today. A jury's
assessment of the reasonableness of such beliefs would doubtless
take these considerations into account.(93)

Kirby A-CJ thereby offered a reinterpretation of
the Levine ruling according to which the meaning of 'unlawful'
abortion is in effect determined by a doctor's subjective beliefs
about when an abortion is appropriate, based on that doctor's
assessment of the impact of social and economic factors on the
health of a woman seeking abortion. His approach therefore arguably
legitimises the provision of abortion services 'on request', but
only if those services are provided by doctors who consider that
abortion should be provided on request because forcing a woman to
continue with an unwanted pregnancy would inevitably have a
negative and serious impact on her mental health. This result seems
to fulfil a legal prophesy made by Glanville Williams in 1952:

So far there has been no indication in the
American or English cases that abortion would be legally justified
on [social or economic grounds per se] ... It seems
unlikely that the Judges would ever feel themselves able to stretch
either the words of statutes or the doctrine of necessity to cover
any of those considerations... However - and this cannot be too
strongly emphasised - some of these considerations may enter
indirectly (at least in those jurisdictions where the mother's
health as well as her life can be considered) by giving rise to the
practitioner's belief that it would be injurious to the mother to
allow her to give birth to the child. In particular, severe worry
about the consequences of having the child is one of the factors
that may affect the mother's mental health.

... If the law allows the doctor to take account
of the strain that would be imposed on the mother's health by
bringing up the child after birth, it will have taken a long step
towards allowing abortion on social grounds.(94)

It should not be forgotten, however, that the
Kirby ruling does not allow doctors to provide abortions to women
whose mental and physical health they consider to be entirely
robust and unthreatened by continuing the pregnancy. However low
his ruling set the minimum level of threat to a pregnant woman's
health that can lead a doctor to conclude that the threat is
'serious', Kirby A-CJ did not actually state that an abortion will
be lawful whenever a pregnant woman desires it and a doctor is
willing to perform it.

Kirby A-CJ's test retains the notion that, in
the absence of a serious risk to her life or physical health, a
pregnant woman cannot obtain a lawful abortion unless she has or is
threatened by some kind of mental instability. Thus the law in New
South Wales continues to state that a woman can only legitimately
choose to terminate a pregnancy if she is in some way actually or
potentially 'unwell'. A competent and entirely healthy adult woman
does not have a legal right to terminate her pregnancy. The law
also firmly establishes that it is people other than the pregnant
woman who ultimately determine whether she will obtain the abortion
she seeks. Liberal as the Kirby ruling may be, whether an abortion
is lawful under that test depends on the doctor's
subjective belief that abortion is justified on health grounds (and
then, if an attempt is made to enforce the law, on an assessment of
that belief by a judge or jury). It does not depend on the
pregnant woman's subjective belief that the abortion is
justified for social, financial or other reasons; and she can only
lawfully obtain an abortion if she is willing and able to convince
a doctor that the abortion is justified on health grounds.

A High Court Ruling?

In April 1996 the High Court of Australia
granted special leave to appeal against the findings of the New
South Wales Court of Appeal in the Superclinics case.(95)
In September 1996 the (then) Chief Justice of the High
Court-Brennan CJ-granted an application by the Australian Catholic
Health Care Association and the Australian Catholic Bishops'
Conference to be admitted as amicus curiae (friend of the court).
He also admitted the Abortion Providers' Federation of
Australasia.

The Women's Electoral Lobby also prepared an
application to be similarly admitted as amicus curiae.
Before this application or the case itself could be heard, however,
the parties to the action settled out of court in October 1996.

Had the High Court heard this case, it would
have been obliged to examine, for the first time, the meaning of
unlawful in the context of the NSW criminal provisions that
prohibit unlawful abortion In the course of such examination,
presumably the High Court would have addressed the arguments put by
the Australian Catholic Health Care Association and the Australian
Catholic Bishops' Conference, claiming that both R v. Wald
and R v. Davidson were wrongly decided, and should be
overruled. Part of that argument was a claim that the defence of
necessity has no application in the context of abortion. The High
Court's response to that argument would have had important legal
implications beyond New South Wales, the jurisdiction in which the
Superclinics case arose. It would additionally have
affirmed or eroded the legal validity of the judicial statements on
this matter in Victoria and Queensland, and it would have provided
guidance as to the appropriate interpretation of the relevant laws
in the Australian Capital Territory, Western Australia and
Tasmania.

In the absence of a High Court ruling in the
Superclinics case, the Kirby ruling in the New South Wales
Court of Appeal continues to represent the legal position on
abortion in that State.

Australian Capital Territory

The wording of the statutory provisions that
criminalise unlawful abortion in the Australian Capital
Territory(96) is exactly the same as the wording of the equivalent
provisions in New South Wales. In addition, the criminal law in
both the Australian Capital Territory and New South Wales is
governed by common law principles of criminal liability rather than
being codified.(97) This means that courts in the ACT view the
interpretive approach of courts in New South Wales as highly
persuasive on criminal matters. It therefore has long been assumed
that the legal position on abortion in the Australian Capital
Territory is the same as the legal position established at any
given time by case law in New South Wales.(98) This assumption has
never been tested in a court.

From 1978 the law in the Australian Capital
Territory additionally required an abortion to be performed in a
public hospital.(99) The legislation imposing this hospitalisation
requirement was repealed in 1992.

Queensland's Criminal Code does not contain a
definition of unlawful for the purposes of the provisions that
criminalise unlawful abortion.(100) It does, however, contain a
defence that allows anyone to perform a surgical operation for the
'benefit' of the patient, or 'upon an unborn child for the
preservation of its mother's life,' if the performance of the
operation is 'reasonable, having regard to the patient's state at
the time and to all the circumstances of the case,' and provided
the procedure is carried out in good faith and with reasonable care
and skill. That defence is contained in section 282 of the Criminal
Code.

The first reported case containing any reference
to this defence in relation to abortion was the 1955 decision of
the Queensland Court of Criminal Appeal in R v. Ross &
McCarthy.(101) The case involved prosecution of a medical
practitioner, Dr Arthur Ross, and Mr Thomas McCarthy and Mrs Ada
McCarthy under section 224 of the Queensland Criminal Code in
connection with an abortion performed on the kitchen table of a
suburban house in Brisbane. All three defendants were found guilty
as charged, and appealed against their convictions on a range of
grounds, most of which related to evidentiary issues. Their appeals
were successful. All three convictions were quashed, and a new
trial was ordered in the case of the McCarthys.

Only passing reference was made to section 282
of the Criminal Code in R v. Ross & McCarthy. The
judgment of Mansfield SPJ, with which Mack J concurred, stated that
the Crown had been under a duty to negative the provisions of
section 282 in order to establish that the defendants had been
guilty of criminal behaviour.(102) Mansfield SPJ also responded
briefly to the appellants' contention that the trial judge had
misdirected the jury as to the meaning of the words 'preservation
of the mother's life' in section 282. He stated that it had been
sufficient for the trial judge simply to read these words to the
jury without attempting to explain them, because the words
'preservation' and 'life' do 'not bear any technical meaning.' He
said that although the judge in R v. Bourne had explained
these words to the jury, no such explanation had been needed in
this case.(103) These comments did not seem to be a disapproval of
the statement of the law in R v. Bourne,(104) but neither
were they a clear affirmation that the test outlined in that
earlier English case represented the legal position in
Queensland.

The McGuire ruling

In the early 1980s, judges in Queensland began
to indicate in obiter that the section 282 defence authorises
abortions that satisfy the test advanced in R v.
Davidson.(105) The applicability of the Menhennitt ruling in
Queensland was confirmed in 1986 by McGuire DCJ of the District
Court in R v. Bayliss and Cullen.(106)

That case involved prosecution of two medical
practitioners, Dr Peter Bayliss and Dr Dawn Cullen, under the
Queensland provisions that criminalise abortion. Specifically, they
were charged under section 224 of the Queensland Criminal Code in
respect of an abortion they had performed at the Greenslopes
Fertility Control Clinic in Brisbane. The jury in this case
acquitted both doctors. It did so after being directed by McGuire
DCJ to apply the test in R v. Davidson. In a lengthy
judgment, McGuire DCJ reviewed relevant case law in Australia and
other common law jurisdictions, discussed academic commentary on
those cases, and analysed the text and history of relevant
provisions of Queensland's Criminal Code. In concluding that the
defence in section 282 of the Criminal Code imported the Menhennitt
ruling, McGuire DCJ also stated his approval of the reliance in
that case upon the doctrine of necessity as a rationale for that
ruling.(107)

R v. Bayliss and Cullen put an end to
doubts as to whether the liberalising judicial reform introduced in
Victoria almost twenty years earlier applied in Queensland. The
McGuire ruling contained an important reminder, however, that the
1969 Victorian reform had not authorised abortion unless the
pregnant woman faced a serious danger to her health:

... It is a humane doctrine devised for
humanitarian purposes; but it cannot be made the excuse for every
inconvenient conception. ... it is only in exceptional cases that
the doctrine can lawfully apply. This must be clearly
understood.

The law in this state has not abrogated its
responsibility as guardian of the silent innocence of the unborn.
It should rightly use its authority to see that abortion on a whim
or caprice does not insidiously filter into our society. There is
no legal justification for abortion on demand.(108)

McGuire DCJ also seemed unprepared to accept the
expansion of the test in R v. Davidson in the subsequent
New South Wales case of R v. Wald. He referred to the
latter case in his judgment, and included discussion of the
liberalising effect of allowing social and economic factors to be
considered when assessing risk to the pregnant woman's health, but
then expressly approved only the statement of the law in R v.
Davidson.(109) This seems to have been because of a perceived
danger that adopting the interpretation of 'unlawful' in R v.
Wald might pave the way for legal recognition of social and
economic factors per se as grounds for abortion.(110)

Like the test in R v. Wald, however,
the interpretation of the Queensland law offered by McGuire DCJ
seems to indicate that an abortion will not be lawful unless
performed by a qualified medical practitioner.(111)

Finally, McGuire DCJ indicated that it was his
view that the legal test advanced in R v. Davidson, which
he had affirmed as part of Queensland law, lacked sufficient
certainty and clarity. He stated, however, that any changes to that
legal test required the 'more imperative authority' of Parliament
or a higher court.(112)

The de Jersey ruling

The result in R v. Bayliss & Cullen
was affirmed by de Jersey J of the Supreme Court of Queensland in
the 1994 case Veivers v. Connolly.(113) That case involved
a civil action by the mother of a severely handicapped child, who
had been born in 1976, against the doctor who had been responsible
for her medical care during the pregnancy. The plaintiff alleged
that the doctor had negligently failed to diagnose that she had
suffered from rubella during that pregnancy, and had thereby
deprived her of the opportunity to terminate the pregnancy, to
avert the likelihood that she would give birth to a seriously
malformed infant. She sought compensation for the consequences of
being deprived of this opportunity to abort. The court upheld her
claim. It awarded her damages for her own pain and suffering, and
for the past and future costs involved in providing medical and
other care for this severely disabled child. The total award of
just over $900 000 was discounted by five per cent to account for
the possibility that the plaintiff would not have been able to
obtain an abortion even if she had been in a position to seek
one.

In his judgment, De Jersey J discussed whether
the abortion in question would have been lawful under the
Queensland Criminal Code. In doing so he affirmed that the words
'for the preservation of the mother's life' in section 282 of the
Criminal Code allow abortions to be performed in circumstances
including those where the operation is 'necessary to preserve the
woman from a serious danger to her mental health which would
otherwise be involved should the pregnancy continue.'(114) He also
rejected the defendant's claim that the only relevant 'serious
danger to mental health' could be one that arose during the period
of the pregnancy itself. It was instead his view that the relevant
danger to mental health could be-as in this case-one 'which would
not fully afflict [the woman] in a practical sense until after the
birth.'(115) This conclusion both clarified and liberalised the
meaning of unlawful abortion in Queensland. It also enabled De
Jersey J to conclude that there would have been no legal obstacle
to performing an abortion in this case.(116)

The paternal injunction cases

In addition to the above rulings, two cases
clarifying another important aspect of abortion law were decided in
Queensland in the 1980s. Each of these cases involved an
application to the court for an injunction restraining a pregnant
woman from terminating her pregnancy. In each case the application
was made by the putative father of the foetus in question.

The first case, K v. T, came before a
single judge of the Queensland Supreme Court in 1983. The applicant
in this case was a man who was neither married to nor in a de
facto relationship with the respondent. They had had sexual
intercourse on only one occasion, and the respondent had become
pregnant as a result. She had informed him of her intention to have
an abortion, on the basis that it would be 'best for everyone.' The
applicant sought to prevent this because he was strongly opposed to
abortion. He wanted her to continue with the pregnancy, with his
financial support, and then surrender the child for adoption. In
the Supreme Court, Williams J refused his application for an
injunction to restrain the respondent from causing or permitting
the pregnancy to be terminated.

Williams J gave three reasons for refusing the
application. The first reason was that the court's inherent
parens patriae jurisdiction, which enabled it to intervene
to protect vulnerable subjects of the Crown, including infants, did
not extend to a foetus. This was because a foetus lacks legal
personality, unless and until it is born alive.(117) The second
reason was that it was not appropriate for the court to intervene,
either on behalf of the applicant or on behalf of the foetus, to
protect and preserve any future legal rights the applicant
might acquire to apply for custody of a child once it was
born.(118) The final reason given by Williams J for refusing to
grant an injunction was that, even if the proposed abortion would
have been illegal under Queensland's Criminal Code, the applicant
lacked standing to bring legal proceedings to restrain a possible
breach of the criminal law, which is a matter for public officials
rather than private citizens.(119)

The applicant in K v. T appealed to the
Full Supreme Court of Queensland. The Attorney-General of
Queensland joined the proceedings on the relation of the original
applicant. This was intended to overcome the third of the obstacles
to a successful application identified by Williams J at first
instance: namely, that the applicant lacked standing to seek an
injunction to restrain a breach of the criminal law. The Full
Supreme Court in Attorney-General (ex rel Kerr) v. T
rejected the appeal. In a joint judgment, Campbell CJ, Andrews SPJ
and Connolly J concluded that it would be inappropriate in this
case for a civil court to exercise its discretion to grant the
Attorney-General's request for an injunction to restrain the
commission of a criminal offence. The court held that the court's
discretion to grant such an injunction should only be exercised in
exceptional cases: cases where a criminal offence is repeatedly
committed due to an inadequate penalty in the Criminal Code, or
cases where there is an emergency. The court held that the instant
case fell into neither category.(120) The court also affirmed the
conclusion of Williams J that, because a foetus lacks legal
personality, it could not be protected using the court's inherent
or parens patriae jurisdiction.(121)

An application was made to the High Court for
special leave to appeal against the decision of the Queensland
Supreme Court in Attorney-General (ex rel Kerr) v. T, and
for an interlocutory injunction. The application was heard and
dismissed by Gibbs CJ. He affirmed the lower courts' view that it
would be inappropriate for a civil court to issue an injunction in
this case to restrain a possible breach of the criminal law,
stating it was unjustifiable to assume that the respondent would be
convicted of breaching the Criminal Code if she had an abortion and
was ever prosecuted in relation to it.(122) He also affirmed the
lower courts' conclusion that the law does not regard a foetus as a
person whose existence can be protected by the courts, because it
lacks legal rights until it is born and has a separate existence
from its mother.(123) He went on to say that, even if this latter
view were wrong, the applicants would still fail:

There are limits to the extent to which the law
should intrude upon personal liberty and personal privacy in the
pursuit of moral and religious aims. Those limits would be
overstepped if an injunction were to be granted in the present
case.(124)

The second case in which an injunction was
sought to restrain a pregnant woman from having an abortion was
decided in Brisbane in 1989 by Lindenmayer J of the Family Court of
Australia. In that case, In the Marriage of F,(125) the
applicant sought an injunction restraining his estranged wife from
terminating her pregnancy. Lindenmayer J dismissed the application.
He affirmed that there were no common law rights that would support
the husband's application. Specifically, he concluded that the
so-called 'right to procreate' claimed by the applicant did not
extend to giving him a right to force his wife to continue her
pregnancy against her wishes, even if it was not clear that the
proposed abortion would be legal.(126) He also concluded that,
because a foetus lacks legal personality and cannot have rights
until it is born, a foetus has no common law rights that could be
enforced by the applicant on its behalf.(127)

Lindenmayer J did acknowledge, however, that the
Family Court had jurisdiction to grant the injunction sought. That
jurisdiction was conferred by section 114(1) of the Family Law
Act 1975 (Cwth), which empowers the court to make such order
as it considers 'proper' with respect to proceedings that relate to
a matter 'arising out of the marital relationship'.(128)
Lindenmayer J concluded, however, that it would not be 'proper' to
grant the applicant husband an injunction in this case.

He gave three reasons justifying this
conclusion. The first reason was that the marriage between the
parties to the case seemed to have broken down. Lindenmayer J's
second reason was that granting the injunction would force the
respondent to proceed with a pregnancy she did not want, and to
give birth to a child she did not want and which she might resent,
which he felt cast doubts on both her will and capacity to carry
out her functions as a mother. His third reason was that granting
the injunction would compel the respondent 'to do something in
relation to her own body which she does not wish to do', which
would be 'an interference with her freedom to decide her own
destiny.' He acknowledged that refusing the injunction could be
said to allow the respondent 'to interfere with the destiny of the
intended child,' but said that this objection was answered by his
finding that the foetus had no legal right to be born which the
court could protect. He also acknowledged that refusing the
injunction could be said to allow the respondent to override her
husband's 'interest in having his intended offspring born,' but
answered this objection by saying that, in the circumstances of
this case, that interest was 'subordinate to the legitimate
interest of the wife in being left free to decide a matter which
affects her far more directly than it does the husband.'(129)

The maternal-foetal attack case

There have been no cases involving prosecution
of doctors under the Queensland laws that criminalise abortion
since 1986. In 1996, however, Hoath DCJ of the District Court of
Queensland heard a case involving a prosecution under those laws
that was of a different kind.

The case, R v. Lippiatt,(130) arose
from an attack on a pregnant woman in Queensland by her estranged
partner. At the time of the attack, which involved a karate kick to
her stomach, she was seven and a half months pregnant. The attack
resulted in a stillbirth. The accused was charged with assault
causing bodily harm to the pregnant woman. Unusually, he was also
charged with acting unlawfully in an attempt to procure a
miscarriage, under the Queensland provisions that make unlawful
abortion a crime. The defendant pleaded guilty to both charges and
was sentenced to nine years' imprisonment.

The decision to lay the additional charge
against the accused in this case was novel because Australian
prosecutions under the laws that criminalise abortion, when they do
occur, have hitherto related to the performance of an abortion in a
medical context, at the request of the pregnant woman who has
chosen to end the pregnancy. They have not related to the very
different situation where a pregnancy ends as the result of a
violent physical attack on a woman, during a pregnancy with which
she presumably wishes to continue.

The application of Queensland's abortion laws to
this latter situation in R v. Lippiatt seemed to be
motivated by the prosecutorial authority's desire to bring the
accused to specific and separate legal account for the demise of
the victim's child. This could not have been done by prosecuting
the accused for murder or manslaughter, because the child in R
v. Lippiatt was born dead.(131) Nor was there any foeticide
offence in Queensland law under which the accused could have been
charged in relation to assaulting and killing the foetus in
utero.(132) There was, however, one other way in which the accused
could have been punished in relation to killing the victim's
foetus, namely in the ordinary course of sentencing after his
conviction for assaulting the pregnant woman. It is not clear why
this alternative was considered inadequate in R v.
Lippiatt.

Tasmania

The statutory provisions that criminalise
abortion in Tasmania are sections 134 and 135 of the Tasmanian
Criminal Code. These provisions seem to be subject to the following
defence:

It is lawful for a person to perform in good
faith and with reasonable care and skill a surgical operation upon
another person, with his consent and for his benefit, if the
performance of such operation is reasonable, having regard to all
the circumstances.(133)

The wording of this defence resembles that of
the Queensland statutory defence(134), except that it lacks the
words 'or upon an unborn child for the preservation of its mother's
life'.(135) Whether or not an abortion is lawful under the same
circumstances as in Queensland therefore is uncertain.

Further uncertainty is introduced by section 165
of the Tasmanian Criminal Code, which additionally prohibits
causing the death of 'a child who has not become a human being in
such a manner that he would have been guilty of murder if such
child had been born alive', unless the death is caused by 'means
employed in good faith for the preservation of its mother's
life.'(136)

Although there were prosecutions and convictions
up until the 1960s under sections 134 and 135 of the Tasmanian
Criminal Code, these did not produce case law clarifying the effect
of these provisions.(137) The legal position in Tasmania therefore
is very unclear.

In 1969, the same year that liberalising
judicial reform of Australian abortion law began in Victoria, South
Australia enacted legislation that made the clarified the law
criminalising abortion in that State. Following the approach of the
reforms introduced in England and Scotland by the Abortion Act
1967, the South Australian legislation introduced a statutory
definition of when an abortion is not 'unlawful'.(138) That
definition is to be read into the pre-existing and unrepealed
statutory provisions that create the crime of unlawful
abortion.(139)

Under the South Australian legislation an
abortion cannot be performed late in pregnancy unless it is
performed in good faith solely to preserve the life of the pregnant
woman. The cut-off point is specified as the stage of pregnancy
where the foetus has become 'a child capable of being born alive,'
a point which the legislation sets at prima facie 28 weeks of
pregnancy but which might arise in some cases from around 22-23
weeks of pregnancy.(140)

Earlier in pregnancy, however, an abortion can
be performed by a qualified medical practitioner provided her or
she is of the opinion, formed in good faith, that either the
'maternal health ground' or the 'foetal disability' ground is
satisfied. The 'maternal health' ground permits abortion if more
risk to the pregnant woman's life, or to her physical or mental
health (taking into account her actual or reasonably foreseeable
environment), would be posed by continuing rather than terminating
the pregnancy.(141) The 'foetal disability' ground permits abortion
if there is a substantial risk that the child would be seriously
physically or mentally handicapped if the pregnancy were not
terminated and the child were born.(142) There have been no cases
interpreting the South Australian legislation. The wording of the
'maternal health' ground, however, suggests that it is at least as
liberal as the legal test in New South Wales under the Kirby
ruling. This is especially true in the very earliest stages of
pregnancy, when terminating a pregnancy almost invariably poses
less risk to the health of a woman than continuing with
pregnancy.(143) The 'foetal disability' ground further liberalises
the law as it allows early abortion on the basis of foetal
abnormality even if the pregnant woman's mental or physical health
would not be threatened by giving birth to a seriously disabled
child. Neither ground, however, permits abortion for the reason
only that the pregnancy is unwanted.

The medical practitioner's opinion that either
of these grounds is satisfied must be shared by a second qualified
medical practitioner.(144) In addition, the abortion must be
performed in a prescribed hospital in order to be lawful.(145)
Further, the pregnant woman must have been resident in South
Australia for at least two months before the abortion.(146) These
requirements concerning the second medical opinion, hospitalisation
and the woman's are waived in emergency situations. These are
situations where the doctor is of the opinion that the procedure is
immediately necessary to save the life, or to prevent grave injury
to the physical or mental health of the pregnant woman.(147)

The legislation specifies that no person is
under any legal duty 'to participate in any treatment authorised by
this section to which he has a conscientious objection.'(148)

Regulations made under the South Australian
legislation require medical practitioners involved in abortions to
complete a certificate stating the legal ground on which the
abortion in question was justified.(149) The regulations also
require completion of a notice containing information about each
termination of pregnancy.(150) This includes information about the
woman's age, marital status, reproductive history, the abortion
method used, more detailed information about the medical condition
of the pregnant woman or the foetus that legally justified the
termination, and subsequent medical complications (if any). This
documentation must be sent to the Director-General of Medical
Services within 14 days of the abortion, and the doctor must keep
copies for three years after the abortion.

The regulations additionally list almost 80
hospitals in South Australia that are prescribed hospitals in which
abortions may be lawfully performed.(151) They also require the
chief executive officer of a hospital where abortions are
performed, to inform the Director-General of Medical Services each
month of the total number of pregnancies terminated at that
hospital by named individual doctors.(152)

Northern Territory

Legislative changes introduced in the Northern
Territory in 1974 also introduced a statutory explanation of when
an abortion is not 'unlawful.'(153) As in South Australia, that
definition is to be read into the pre-existing and unrepealed
statutory provisions that create the crime of unlawful
abortion.(154)

The Northern Territory legislation permits
abortion up to 14 weeks of pregnancy where either the 'maternal
health ground' or the 'foetal disability ground' is satisfied. The
legislation defines these grounds in the same way as in South
Australia.(155) Although there is no case law on the matter, the
Northern Territory legislation apparently permits abortion at this
stage of pregnancy on similarly liberal grounds as in South
Australia.

The Northern Territory legislation additionally
requires an abortion at this stage of pregnancy to be carried out
in a hospital, by a gynaecologist or obstetrician. A second doctor
must share the opinion that either the 'maternal health ground' or
the 'foetal disability ground' is satisfied.

Any medical practitioner may lawfully terminate
a pregnancy of up to 23 weeks if the doctor believes in good faith
that it is immediately necessary to prevent grave injury to the
pregnant woman's physical or mental health.(156) Any medical
practitioner may lawfully terminate a pregnancy at any stage of
pregnancy if the doctor believes in good faith that it is for the
purpose only of preserving the pregnant woman's life.(157)

The Northern Territory law also provides that
where the pregnant woman is aged under 16 years, 'or is otherwise
incapable in law of giving her consent', the medical practitioner
terminating a pregnancy must obtain the consent 'of each person
having authority in law' to consent on her behalf.(158)

The Northern Territory legislation specifies
that no person is under any legal duty 'to procure or to assist in
procuring the miscarriage of a woman or girl or to dispose of or to
assist in disposing of an aborted foetus if he has a conscientious
objection thereto.'(159)

Western Australia

The defence in section 259

Until recently the legal status of abortion in
Western Australia was apparently the same as in Queensland. As in
Queensland, the Western Australian Criminal Code did not contain a
definition of unlawful for the purposes of the Criminal Code
provisions that made unlawful abortion a crime: sections 199-201.
The Western Australian Criminal Code did, however, contain a
provision that was worded almost identically to section 282 of the
Queensland Criminal Code. That provision-section 259 of the Western
Australian Criminal Code-allowed anyone to perform a surgical
operation for the 'benefit' of the patient, or 'upon an unborn
child for the preservation of the mother's life,' if the
performance of the operation was 'reasonable, having regard to the
patient's state at the time and to all the circumstances of the
case,' and provided the procedure was carried out in good faith and
with reasonable care and skill.

Unlike in Queensland, however, there were no
judicial rulings explaining the meaning of 'unlawful' abortion in
Western Australia and interpreting sections 119-201 and section 259
of the Western Australian Criminal Code in this context. It was
nonetheless widely assumed that the meaning of 'unlawful' abortion
advanced by courts in Queensland, adopting the legal test that
applies in Victoria, represented the legal position in Western
Australia.(160)

The Davenport legislation

In early 1998 it was announced that two Perth
doctors were to be prosecuted under section 199 of the Western
Australian Criminal Code, in respect of an allegedly unlawful
abortion performed in 1996 at the Nanyarra abortion clinic in
Perth. This subsequently led to the passage of legislation
introducing Australia's most liberal abortion law to date. The
legislation was introduced into the upper house of the Western
Australian Parliament in March 1998 as a Private Member's Bill by
Cheryl Davenport MLC (ALP).(161)

The Acts Amendment (Abortion) Act 1998
(WA) was passed by the Western Australian Parliament on 20 May
1998.(162) It repealed old sections 199-201 of the Western
Australian Criminal Code and replaced them with a new section 199.
That new section provides that it is unlawful to perform an
abortion unless the abortion is performed by a medical practitioner
'in good faith and with reasonable care and skill', and the
performance of the abortion is justified under new section 334 of
the Health Act 1911 (WA).

An abortion will be justified under section 334
of the Health Act1911 (WA) if one of four
grounds have been satisfied. The first ground essentially allows
abortion on request. It allows abortion if the pregnant woman has
given 'informed consent.'(163) This is defined to mean 'consent
freely given by the woman' after a counselling requirement has been
satisfied. That counselling requirement demands that an independent
medical practitioner (not the doctor who performs the abortion, nor
any doctor who assists in performing the abortion) has done three
things:

'properly, appropriately and adequately' provided the pregnant
woman with counselling about the 'medical risk' of abortion and of
carrying a pregnancy to term;

offered to refer the pregnant woman for 'appropriate and
adequate counselling' about 'matters relating to' abortion and to
carrying a pregnancy to term; and

informed the pregnant woman that 'appropriate and adequate
counselling' will be available to her should she wish it after the
abortion is performed or after she carries the pregnancy to
term.(164)

If the pregnant woman is aged under 16 and is
being supported by a parent or guardian, she will not be regarded
as having given informed consent unless that person has been told
about the proposed abortion, and that person 'has been given the
opportunity to participate in counselling process consultations
between the woman and her medical practitioner as to whether the
abortion is to be performed.'(165)

The other three grounds under which an abortion
is permitted are more restrictive than the first, but do not impose
any legal requirement that the pregnant woman be offered
counselling. The second ground is that the pregnant woman 'will
suffer serious personal, family or social consequences' if the
abortion is not performed.(166) The third ground is that 'serious
danger to the physical or mental health' of the pregnant woman will
result if the abortion is not performed.(167) The fourth ground is
that the pregnant woman's pregnancy 'is causing serious danger to
her mental health.'(168)

Any one of these four grounds will only legally
justify an abortion performed up to 20 weeks of pregnancy. After
that time, an abortion cannot be performed lawfully unless two
doctors agree that 'the mother or the unborn child' has a 'severe
medical condition [that] justifies the procedure.' These two
doctors must be members of a panel of at least six doctors
appointed for this purpose by the Minister. Additionally, a late
term abortion must be performed in a facility approved for these
purposes by the Minister.(169)

The new law explicitly provides that no 'person,
hospital, health institution, other institution or service' is
under a duty to participate in the performance of any
abortion.(170)

Importantly, the new legislation also changes
the legal consequences of performing an unlawful abortion. The most
onerous penalty is imposed on abortionists who are not medical
practitioners. They will be liable to imprisonment for five years,
unless their behaviour comes within the terms of new section 259 of
the Criminal Code. That section replaces the defence in the old
section 259, discussed above. It is identical to that old section
except that it now refers to 'surgical or medical treatment' rather
than just 'surgical treatment', presumably so that lawful abortions
could include those performed with abortifacient drugs if those
methods are ever approved for general use in Australia.

Doctors who perform abortions otherwise than in
accordance with the new Western Australian law will no longer be
liable to imprisonment: a fine of $50 000 is imposed. Women seeking
or obtaining abortions are no longer subject to any legal sanction
in Western Australia.

The Western Australian legislative reforms
additionally require the Western Australian Health Minister to
conduct a review of 'the operation and effectiveness' of these new
abortion provisions three years after the new legislation comes
into effect.(171)

The lawfulness of abortion in every State and
Territory of Australia, except New South Wales and possibly
Tasmania, is also affected by a separate crime of 'child
destruction.' This crime only applies to abortions performed late
in pregnancy.

The crime of child destruction generally carries
more severe penalties than the crime of unlawful abortion.

Two Australian States, Victoria and South
Australia, have legislation that make it a crime to act with intent
to destroy 'a child capable of being born alive' before it has an
existence independent of its mother, unless the act is done in good
faith solely to preserve the mother's life.(172) Evidence that the
woman in question had been pregnant for 28 weeks or more is
considered to be prima facie proof that she was carrying 'a child
capable of being born alive'. The penalty for committing child
destruction is ten years' imprisonment in Victoria and life
imprisonment in South Australia.

These legislative provisions copied the child
destruction offence contained in section 1 of the Infant Life
(Preservation) Act 1929.(173) That offence was created by the UK
Parliament to provide legal protection for 'unextruded' babies
during the birth process. Such babies were protected neither by the
crime of unlawful abortion (which only protects the foetus in
utero) nor by homicide laws (which only protects a child once it
has been born alive(174)). By making it a crime intentionally to
destroy a 'child capable of being born alive' and by introducing a
legal presumption that a foetus is such a child from the
twenty-eighth week of pregnancy, however, this child destruction
offence extended legal protection beyond the actual period of
birth. The offence also offers legal protection to the 'child
capable of being born alive' while it is still in utero.
At the later stages of pregnancy, therefore, an abortion may
potentially contravene both this child destruction offence and the
criminal prohibition on unlawful abortion.(175)

There is no Australian case law clarifying the
meaning of either the Victorian or the South Australian child
destruction provisions. Some guidance may come from the two English
cases offering interpretations of section 1 of the Infant Life
(Preservation) Act 1929.(176) These cases indicate that, in respect
of pregnancies of less than 28 weeks' gestation, a foetus is 'a
child capable of being born alive' if it would be able to breathe
if born at that stage of pregnancy. That question is to be decided
'on the balance of probabilities.'(177) It is unclear from these
cases whether the child must be able to breathe without medical
assistance in order to satisfy this test. It is clear from these
cases, however, that the child's statistical chance of longer-term
survival if born at that stage of pregnancy is not legally relevant
when assessing if it is 'a child capable of being born
alive.'(178)

The Australian equivalents of the English child
destruction offence therefore might protect foetuses as early in
pregnancy as 22-23 weeks. This is the very earliest point at which
foetal lung development could sustain breathing, with the aid of a
ventilator. This boundary is unlikely to be pushed back by medicine
in the foreseeable future.(179)

The English cases do not make it clear what kind
of proof a court would require to rebut the statutory presumption
that a foetus at 28 or more weeks of pregnancy is not 'a child
capable of being born alive'. It therefore is possible that a court
would consider abortions performed at that late stage of pregnancy
to be automatically unlawful under the Victorian and South
Australian child destruction provisions.

The child destruction offence in section 313(1) - 'preventing a
child from being born alive'

Section 313(1) of Queensland's Criminal Code
provides that it is a crime, 'when a woman is about to be delivered
of a child,' to prevent that child from being born alive. There
have been no cases in Queensland explaining when section 313(1) may
be applicable.

The wording of this provision suggests it may be
restricted to situations where delivery is imminent. If this is the
case, section 313(1) might only apply to behaviour that kills a
foetus late in pregnancy, when a pregnant woman is about to go into
labour. On the other hand, there were some suggestions by McGuire J
in R v. Bayliss & Cullen to the effect that section
313(1) may protect any 'viable' foetus, which would mean the
Queensland provision would apply in the kind of situations covered
by the Victorian, South Australian and English child destruction
offences.(180) Whichever view is correct, it is not clear from the
wording of section 313(1) whether its application depends on the
foetus in question having the capacity to breathe (with or without
medical assistance), or on it having a significant chance of
longer-term survival, if it had been born instead of being killed
at that stage.

The penalty for violating section 313(1) is life
imprisonment.

A new foeticide offence in section 313(2) - 'destroying the life
of an unborn child'

In 1996 the Queensland Criminal Code Advisory
Working Group recommended to the Queensland Attorney-General that
section 313 be amended by inserting new provisions to create a
child destruction offence along the lines of the South Australian
and Victorian offences discussed above. It was recommended that new
subsections 313(2) and (3) be introduced to make it a crime to
unlawfully assault a pregnant woman and destroy the life of 'a
child capable of being born alive,' and to state that evidence that
the woman had been pregnant for a period of 24 weeks or more would
be prima facie proof that she was carrying a child capable of being
born alive.(181)

These recommendations were adopted and
incorporated into the Criminal Code Amendment Bill 1996 (Qld), the
overall purpose of which was to 'update and streamline'
Queensland's Criminal Code.(182) As well as proposing legal
protection for a 'child capable of being born alive' from being
killed, this Bill additionally proposed protecting such a foetus
from grievous bodily harm and from the transmission of a serious
disease.(183)

During passage of this Bill through the
Queensland Parliament in March 1997, however, the relevant
provisions were amended by replacing the reference to 'child
capable of being born alive' with reference to 'a child.' The
amendment also removed the reference to 24 weeks of pregnancy as
the time at which there would be a presumption that this legal
protection extended to a foetus.(184)

The amended section 313 came into effect on 1
July 1997. Thus it is now a crime under section 313(2) unlawfully
to assault a pregnant woman and destroy the life of, do grievous
bodily harm to, or transmit a serious disease to, 'the child'
before its birth. The penalty for this new offence is life
imprisonment.

There is no suggestion in this new provision
that criminal liability is confined to the later stages of
pregnancy. Arguably a 'child' for these purposes includes a foetus
at any stage of its gestation, from the very beginning of
pregnancy. This provision therefore may be best described as a
foeticide offence rather than a new offence of child
destruction.

The precise scope of the new section 313(2)
foeticide offence remains unclear. It certainly would apply to the
kind of behaviour that occurred in R v. Lippiatt, which
indicates that it is unlikely that future cases involving violent
assaults on pregnant women will result in prosecutions under the
Queensland provisions that make unlawful abortion a crime.(185) It
is less clear, however, whether the new section 313(2) could be
applied in the context of medical abortion. Arguably the word
'unlawfully' in section 313(2) would limit its application in that
context to those medical abortions that are already prohibited
under the Queensland provisions that criminalise unlawful abortion,
and thus to abortions that do not satisfy the test in R . v.
Bayliss & Cullen.

Western Australia

Section 290 of the Western Australian Criminal
Code is equivalent to the child destruction provision in section
313(1) of the Queensland Criminal Code. The Western Australian
provision similarly provides that it is a crime, 'when a woman is
about to be delivered of a child,' to prevent that child from being
born alive. The penalty for violating section 290 is life
imprisonment.

As is the case with the relevant Queensland
provision, this Western Australian child destruction offence
arguably is applicable only to situations where a foetus is killed
late in pregnancy. Exactly how late, however, remains unclear. The
following comment on section 290 was made in obiter by Murray J in
the recent case Martin v. The Queen:

The meaning of the phrase 'when a woman is about
to be delivered of a child' is uncertain. Does it mean at or about
the time of birth? If so, why is it so limited, or is it a case
that a woman is regarded as being about to be delivered of a child
at any time when she is pregnant and carrying a live foetus? ...
[Noting] the uncertainties in the proper interpretation of s 290,
which may be left for another day, it is sufficient for present
purposes to conclude that there is nothing in the wording of that
section which would necessarily require it to be applied to conduct
of the accused person which is closely connected in time with the
birth of a dead child.(186)

These comments by Murray J reflect the opinion
he gave in 1983 as Crown counsel when conducting a review of the
Western Australian Criminal Code, that section 290
potentially applies from the twenty-fourth week of
pregnancy.(187)

Section 290 of the Western Australian Criminal
Code was not amended in the recent legislative changes to the
abortion laws in that State.

Section 170 of the Northern Territory Criminal
Code is worded in nearly identical terms to the child destruction
provisions in Western Australia and Queensland. It provides that it
is a crime 'when a woman or girl is about to be delivered of a
child' to prevent that child from being born alive. This crime is
punishable by life imprisonment.

There have been no cases interpreting this
provision and clarifying the circumstances in which a person may be
liable for child destruction in the Northern Territory.

Tasmania

The criminal law of Tasmania does not contain a
statutory provision that clearly applies only to the termination of
late term pregnancies. The Tasmanian provision that most closely
resembles a child destruction offence is section 165 of the
Tasmanian Criminal Code. It prohibits causing the death of 'a child
who has not become a human being in such a manner that he would
have been guilty of murder if such child had been born alive',
unless the death is caused by 'means employed in good faith for the
preservation of its mother's life'.

There are no statutory or judicial
interpretations of the meaning of 'a child who has not become a
human being', and hence no guidance as to at what stage of
pregnancy a foetus would be protected by this section. Arguably
section 165 might apply at any stage of pregnancy, in which case
this provision might be better described as forming part of the
Tasmanian law that establishes the crime of unlawful abortion

The penalty for contravening section 165 is 21
years' imprisonment, and/or a fine, as the sentencing judge deems
appropriate in the circumstances of each case.

Section 40 of the Crimes Act 1900 (ACT)
establishes a child destruction offence that prohibits behaviour
'occurring in relation to a childbirth and before the child is born
alive' that 'prevents the child from being born alive' or
'contributes to the child's death.' The crime is punishable by 15
years' imprisonment.

Again, there is no case law explaining the
meaning of section 40. The words 'in relation to a childbirth'
suggest, however, that section 40 only applies to abortions
performed at the very end of pregnancy, when delivery has already
commenced or is very imminent.

New South Wales

The Crimes Act 1900 (NSW) contains no
provision that may be described as a child destruction offence. The
only somewhat relevant provision is section 42, which makes it a
crime-punishable by 14 years' imprisonment-to maliciously inflict
grievous bodily harm on a child 'during or after' its delivery.
This offence clearly only applies in situations where a pregnant
woman's labour has already commenced. It does not apply where the
foetus is still in utero.

The criminal law in every Australian State and
Territory prohibits unlawful homicide. This may be described as the
killing of a human being which is not justified or excused by law.
There are various categories of homicide, which broadly follow a
basic distinction between the more serious crime of murder and the
less serious crime of manslaughter. The detail of the legal rules
governing liability for different kinds of homicide varies,
however, between the different States and Territories. The
following discussion averts to the detail of these rules, and the
differences between them, only where they are relevant to the
potential application of the law of homicide to abortion.(188)

Under Australian law a foetus in utero cannot be
the victim of any kind of homicide, regardless of the stage of
pregnancy at which it is killed.(189) A foetus can only be the
victim of murder or manslaughter if it is born in a living state.
For these purposes, a child is born in a living state when it-but
not necessarily the umbilical cord, placental tissue or
afterbirth-is completely extruded from the pregnant woman's
body.(190) Except in the Australian Capital Territory, and in New
South Wales for murder prosecutions, a child need not have breathed
to be considered born alive. Nor is it necessary that the child be
viable in the sense that it has the capacity to stay alive.(191) A
functioning heart is probably sufficient.(192) Birth includes
surgical removal of the child from its mother, as in the case of
birth by Caesarean section, as well as vaginal delivery.

Thus where a foetus is killed in utero in the
course of an abortion there can be no prosecution for
homicide.(193) The legal situation is different, however, where an
abortion does not produce a dead foetus. The law of homicide may
apply if the foetus is born alive according to the above
definitions, but then dies as a result of its prematurity.(194)
Authorities for this under English common law are the old cases
R v. West (195) (which involved a murder prosecution) and
R v. Senior (196) (which involved a manslaughter
prosecution). A similar result was reached in a more recent case
involving a manslaughter prosecution under the Queensland Criminal
Code, R v. Castles.(197) In that case, the accused, who
lacked medical qualifications, had attempted to abort a pregnancy
of between 20 and 24 weeks by injecting warm water into her uterus.
Two days later the pregnant woman gave birth to a child who
apparently had breathed before dying two hours later. At the
commencement of the trial, Lucas J of the Supreme Court of
Queensland stated that although this was a 'most unusual indictment
for manslaughter,' it was nonetheless one in which a verdict of
guilty would have been open on the evidence given at the committal
proceedings. The evidence subsequently presented to the court,
however, introduced a reasonable doubt as to whether the child had
in fact been born alive. Accordingly, Lucas J stated that the case
should not go to the jury. He also expressed the view that it would
have been more appropriate to have charged the accused with the
crime of unlawful abortion, under section 224 of the Queensland
Criminal Code.

It is possible that the law of homicide might
also apply if the foetus is born alive but dies as the result of
injuries inflicted during the abortion. That conclusion may be
supported by recent English and Australian decisions involving
violent attacks on pregnant women, where the foetus has been
damaged but subsequently has been born alive, the child has then
died as a result of its injuries, and where the attacker has been
prosecuted for homicide in relation to the child's death.

An important case of this kind was the decision
of the English Court of Appeal in Attorney-General's Reference
(No 3 of 1994) .(198) In that case, a man had stabbed his
pregnant girlfriend in her lower abdomen. At that time she was
24-26 weeks' pregnant. The attack caused the woman to go into
premature labour. She gave birth to a child who was seriously
damaged due to the stab wounds she had received in utero. The child
lived for four months after her birth. The accused was charged with
the child's murder. The trial court ruled there was no case to
answer. The Court of Appeal, however, was of the opinion that,
although under English law no-one could be liable for murder or
manslaughter for killing a foetus in utero, both offences could be
committed where a child's death results from injury to its mother
during her pregnancy. The Court of Appeal did also state that in
obiter that this conclusion would not render a doctor who
carried out an abortion liable to conviction for murder, if the
foetus were born alive but subsequently died, provided that
abortion had otherwise been lawfully performed.(199) That statement
has attracted criticism,(200) however, and no subsequent case has
arisen to confirm that it does represent the legal position in
either England or in any Australian jurisdiction.

The recent Western Australian case Martin v.
The Queen (201) is also relevant on this point. The appellant
in that case had stabbed his de facto wife in her lower back during
her twenty-eighth week of pregnancy. As a result she had suffered
substantial loss of blood which led to a deficiency in the blood
supply to the foetus. This in turn caused damage to the foetal
brain. Two months after the attack, the woman gave birth. The child
was born alive but suffered massive brain damage from which he died
seven months later. The accused was charged with manslaughter. He
appealed against his conviction, claiming that a homicide charge
could not be brought under the Western Australian Criminal Code in
respect of behaviour that had taken place when the alleged victim
was still a foetus in utero. The Western Australian Court of
Criminal Appeal rejected the appeal and the argument that a
homicide charge can only be brought if the victim was, at the time
of the attack, a person recognised by the law as a person who may
be killed. The court affirmed that the prosecution could be brought
in respect of injuries inflicted on it before its birth which
ultimately led to its death, because the child in question had been
born alive.

In reaching this conclusion, the court placed
reliance on section 271 of the Western Australian Criminal Code,
which provides that a person is deemed to have killed a child (for
the purposes of the relevant homicide offences) when that child
dies in consequence of that person's behaviour 'before or during
its birth.' The court held that there was no reason to limit the
application of section 271 to behaviour occurring at or shortly
before the child's birth. Rather, that section should be viewed as
applicable to acts and omissions damaging the foetus in utero at
any stage of pregnancy.(202) The Criminal Codes in Queensland and
the Northern Territory contain provisions worded identically to
section 271,(203) which arguably renders it more likely that the
courts in those jurisdictions would follow the approach of the
Western Australian court in Martin v. The Queen. The
absence of such a statutory provision in other Australian
jurisdictions, however, would not necessarily inhibit courts in
those jurisdictions from reaching the same conclusion on the basic
question of whether liability for homicide can attach in this kind
of case.

It should be noted that the court's reasoning
and conclusion in Martin v. The Queen was consistent with
decisions in other (non-Code) Australian jurisdictions recognising
that, if and only if it is born alive, a child may bring a civil
action in respect of damage caused by negligent behaviour that took
place before its birth(204) or even its conception.(205) Although
the court in Martin v. The Queen did not specifically
address this matter, the court's approach arguably was also
consistent with the conclusion that liability for homicide can
attach in respect of the subsequent death of a child resulting from
an otherwise lawfully performed abortion.(206)

It is also possible that the law of homicide
could apply to a failure to attempt to sustain a child born alive
after the performance of an otherwise lawful abortion. There have
been no prosecutions along these lines in Australia. The only known
English prosecution of this kind, R v Hamilton,(207)
involved a doctor who was alleged to have left a living abortus to
die. The magistrate held there was no case to answer and the
prosecution was dismissed. The English Court of Appeal averted to
this issue in Attorney-General's Reference (No 3 of 1994)
but declined to express any opinion on the matter.(208)

See further: Expert Panel of Women's Committee of National
Health and Medical Research Council (NHMRC), An Information
Paper on Termination of Pregnancy in Australia, AGPS,
Canberra, 1996; L. Ryan, M. Ripper and B. Buttfield, We Women
Decide: Women's Experience of Seeking Abortion in Queensland, South
Australia and Tasmania 1985-1992, Flinders University,
Adelaide, 1994.

The Criminal Code in each of Queensland (first enacted in 1899)
and Western Australia (first enacted in 1902) is based on a draft
written in 1897 by Sir Samuel Griffith, then Chief Justice of the
Supreme Court of Queensland. The Tasmanian Criminal Code (first
enacted in 1924) was influenced by the Griffith model but differs
in many respects. The Northern Territory Code (first enacted in
1983) is in many ways 'more individual, indeed almost
idosyncratic', incorporating aspects of the Griffith model, the
Tasmanian Criminal Code and New Zealand's Criminal Code of 1893: E.
Edwards et al.The Criminal Codes: Commentary and
Materials, 4th ed, Law Book Company, Sydney, 1992, pp. 3-4.

One example of this divergence is the different interpretations
given by Australian and English courts to the defence of
intoxication; another is their different approach to defining the
elements of murder at common law: Gillies, supra n 5, p.
9.

The Western Australian Parliament recently repealed ss. 199-201
of the Criminal Code 1913 (WA) and replaced these
provisions with a new s. 199. See further infra.

Except in the Northern Territory, and now in Western Australia.

For discussion of when a pregnancy begins for the purposes of
the crime of unlawful abortion, and thus when it is possible to
'procure a miscarriage', see N. Cica, 'The Inadequacies of
Australian Abortion Law', Australian Journal of Family Law
vol. 5, 1991, pp. 49-51.

24 & 25 Vict. c. 100.

7 Will. 4 & 1 Vict. c 85.

9 Geo. 4 c. 31.

43 Geo. 3 c. 58.

W. Blackstone, Commentaries on the Laws of England,
pp. 129-130; J. Barry, 'The Law of Therapeutic Abortion' ,
Proceedings of the Medico-Legal Society of Victoria, vol.
3, 1938, p.212. See G. Williams, The Sanctity of Life and the
Criminal Law, Knopf, New York, 1957, p. 152; E. Coke,
Institutes of the Laws of England, Part III p. 50. For a
discussion of the early English abortion statutes see K. Petersen,
Abortion Regimes, Dartmouth Publishing, Aldershot, 1993,
pp. 19-21; B. Dickens, Abortion and the Law, McGibbon
& Kee, London, 1966, pp. 20-28; and J. Keown, Abortion,
Doctors and the Law, Cambridge University Press, Cambridge,
1988, pp. 3-47.

In all Australian States and Territories except Western
Australia, the wording of the original offence indicates this
implicitly: see: I. Kennedy and A. Grubb, Medical Law: Text
with Materials, 2nd ed, Butterworths, London, 1994, p. 865; L.
Crowley-Smith, 'Therapeutic Abortions and the Emergence of Wrongful
Birth Actions in Australia', Journal of Law and Medicine,
vol. 3, 1996, p. 359. In Western Australia, the wording of the new
offence explicitly states that an abortion will not be unlawful in
specified circumstances.

See Cica, supra n 12 at 38-43. This tripartite
classification system is taken from Royal Commission on Human
Relationships, Final Report: Volume 3, AGPS, Canberra,
1977, p. 137, modified to take account of the recent changes
to the law in Western Australia.

Until recently the laws in Western Australia also fell into
this category.

Williams, supra n 17, p 152. C.f.R v.
Woolnough [1977] 2 NZLR 508, where a majority of the New
Zealand Court of Appeal, interpreting legislative provisions
similar to s. 58 of the Offences Against the Person Act
1861, criticised and rejected an approach based on the
doctrine of necessity. Richmond P in particular (at 516-7)
criticised the 'extreme vagueness' of that doctrine. He said that
the court should not 'confine its approach to this question by
reference to the so-called general defence of necessity in the
common law,' but should instead make a 'value judgment' and accept
the responsibility entrusted to it by the legislature of 'drawing a
line between those abortions which are and those which are not
lawful.'

[1938] 3 All ER 615 at 619, emphasis added.

ibid.

In Royal College of Nursing of the United Kingdom v.
Department of Health and Social Security [1981] 2 WLR 279 at
298, Lord Diplock described this reference to wreckage as 'a vivid
phrase borrowed from one of the witnesses, but unfortunately
lacking in precision.'

Macnaughten J himself acknowledged that he was advocating a
'reasonable' rather than a 'wide and liberal' interpretive
approach: [1938] 3 All ER 615 at 619.

C.f.R v. Bourne [1938] 3 All ER
615, where Macnaghten J's interpretation of unlawful
arguably also relied on the defence of necessity, but where the
judge himself did not acknowledge such reliance. See discussion,
supra.

ibid., p. 672.

ibid.

February 1972, Victorian County Court, unreported, per
Southwell J. See The Age 19/2/72 and K. Breen, V.
Plueckhahn and S. Cordner, Ethics, Law and Medical
Practice, Allen & Unwin, Sydney, 1997, p. 282.

This argument is made in M. Spry, 'A 'Person Aggrieved' Under
the ADJR Act: Three Recent Cases on Standing'
Australian Journal of Administrative Law vol. 3, no. 2,
1996 p. 120. See further M. Allars, 'Standing: the Role and
Evolution of the Test' (1991) 20 FLR 101.

Spry, ibid., pp. 126-7.

ibid., p. 126. Spry argues that this trend was also followed by
Sackville J of the Federal Court in two cases in which he had
previously held that environmental conservation groups were
'persons aggrieved' for the purposes of the ADJR Act:
Tasmanian Conservation Trust Inc v. Minister for Resources
(1995) 127 ALR 580; North Coast Environment Council Inc v.
Minister for Resources (1995) 127 ALR 617.

(1995) 128 ALR 238 at 170 per Gummow J; at 269
per Beaumont J.

See further In the Application of Kathleen May
Harrigan, High Court of Australia, 1982, unreported; discussed
in J. Scutt, 'Disturbing Connections - Artificial and Natural
Conception and the Right to Choose' in J. Scutt, ed The Baby
Machine, McCulloch Publishing, Melbourne, 1988, p. 162.

Supreme Court of New South Wales, 18 April 1994, unreported.
Hereafter referred to as the Superclinics case. For
criticism of the approach of Newman J in this case, see C. Tricker,
'Sex, Lies and Legal Debate: Abortion Law in Australia' Sydney
Law Review, 1995, p. 446.

The important issue of whether recovery of damages in respect
of the birth of a healthy child would be against public policy
therefore was not addressed until Newman J's ruling was reviewed by
the Court of Appeal of New South Wales. At that stage the relevant
public policy considerations were explored in some detail by Kirby
P and to a lesser extent by Meagher JA.

CES and Another v. Superclinics (Australia) Pty Ltd and
Others (1995) 38 NSWLR 47. For a detailed discussion of this
case, see R. Graycar and J. Morgan, 'Unnatural Rejection of
Womanhood and Motherhood: Pregnancy, Damages and the Law - A Note
on CES v. Superclinics (Aust) Pty Ltd' Sydney Law
Review, vol. 18, 1996, p.323.

Of the two judges in the majority on this point, however, only
one- Kirby A-CJ- concluded that the plaintiff should be compensated
for the costs of raising her child. The other majority judge,
Priestley JA, stated that the plaintiff could have surrendered the
child after its birth for adoption, and that her failure to do so
amounted to a novus actus interveniens. Priestley JA said
that this meant that the costs of bringing up the child therefore
were not caused by the defendants' negligence, but by the
plaintiff's 'choice' to keep her child. The third judge, Meagher
JA, agreed that the plaintiff's decision not to surrender her child
for adoption barred recovery of damages. He characterised this
decision as a failure to mitigate her loss.

Lindenmayer J also stated that this jurisdiction is
not conferred by s. 70C(1) of the Family Law Act
1975 (Cwth),
which empowers the court to
make orders in relation to a child, on the basis that the term
'child' in that section
refers only to a living child:
ibid. at 194-5.

ibid., p. 198.

District Court of Queensland per Hoath J, 24 May 1996,
unreported.

See infra.

See infra. Also see B. Faust, 'Tragedy born of
silence' The Australian,, 1 June 1996; Karate man jailed
for kicking unborn
child to death' The
Canberra Times, 25 May 1996; ''Gentle giant' kicked unborn son
dead' The Sydney Morning Herald ,
27 May 1996.

Criminal Code Act 1924 (Tas), s. 51(1).

And therefore that of the old Western Australian statutory
defence, the meaning of which has not been tested.
See discussion infra.

See Cica, supra note 12 at 41.

See infra.

For example, the comments by Gibson J in R v. Luttrell
(unreported, 1963 Tasmanian Judgments 326), the only recorded
case since the early 1960s
involving prosecution under the Tasmanian abortion provisions,
relate to sentencing
issues rather than to the
content of the legal rules that criminalise abortion.
See H. Finlay, 'Abortion -
Right or Crime?' University of Tasmania Law Review, vol.
10, 1990, p. 8.

The South Australian reform introduced a new s. 82A ,
containing this definition, into theCriminal Law Consolidation
Act 1935 (SA).

ibid., s. 82A(7)-(8). These provisions are best described as
establishing the crime of child destruction and are
discussed in more detail later
in this paper.

ibid., s. 82A(1)(a)(i).

ibid., s. 82A(1)(a)(ii).

Cica, supra note 12 at 64.

ibid., s. 82A(1)(a).

ibid, s. 82A(1).

Criminal Law Consolidation Act 1935 (SA), s. 82A(2).

ibid., s. 82A(1)(b).

ibid., s. 82A(5).

Criminal Law Consolidation (Medical Termination of
Pregnancy) Regulations 1996, reg 5(1) and (2);
the prescribed form is found
in Schedule 1 Part A. These regulations came into operation on 1
September 1996
and revoked the Abortion
Regulations 1970 (SA).

Criminal Law Consolidation (Medical Termination of
Pregnancy) Regulations 1996, reg 5 (3);
the prescribed form is found
in Schedule 1 Part B.

Crimes Act 1958 (Vic), s. 10 and Criminal Law
Consolidation Act1935 (SA), ss. 82A(7)-(8). The
Victorian provision
does not explicitly refer to
the exception for acts done in good faith for the sole purpose of
preserving the mother's life.
It instead specifies that the
destruction must be performed 'unlawfully' to constitute a crime.
Arguably, the word 'unlawfully'
in the Victorian provision
implicitly incorporates the exception for acting in good faith to
preserve the mother's life.
See Cica, supra note
12 at 43.

See Williams, supra n 94 at 130 and 146. Note that
legislative reforms passed in 1991 by the UK Parliament mean
that the child destruction
offence in the Infant Life (Preservation) Act 1929 no
longer applies to any abortion performed
in England, Scotland or Wales
in accordance with the Abortion Act 1967.

A pregnant woman can be given steroid treatment to enhance
foetal lung development, but this is only effective
from around 26 weeks'
gestation.

(1986) 9 Qld Lawyer Reps 8 at 34-37.

Report of the Criminal Code Advisory Working Group to the
Attorney-General, Brisbane, July 1996.

This Bill also repealed the much-criticised and unproclaimed
1995 Criminal Code which had been introduced the
previous year to replace the
1899 Criminal Code: see Criminal Law Amendment Bill 1996
(Qld) - Explanatory Notes, p. 1.

See ibid., p. 12 (Clause 47).

These amendments were introduced by Liz Cunningham MP
(Independent, Gladstone) and were supported by the
Queensland Government.

Criminal Code Act 1899 (Qld), ss. 224-226.

WA Court of Criminal Appeal, 4 April 1996, unreported, pp. 7-8.
See further discussion of this case infra.

The Criminal Code: A General Review, Perth, 1983; see
also S. Gabriel, 'Child Destruction: A Prosecution Anomaly
Under Both the Common Law and
the Criminal Codes,' Criminal Law Journal, vol.
21, 1997, pp.35-6.

For a detailed explanation of the legal rules governing
homicide in the common law jurisdictions (Victoria, NSW and
the ACT) see Gillies,
supra n 5, chapter 25 and D. Brown et al., Criminal
Laws: Materials and Commentary on Criminal
Law and Process in New South
Wales 2nd ed, Federation Press, Sydney, 1996, vol. 1, chapter
5. For a detailed explanation
of the legal rules governing
homicide in the Code States (Queensland, Western Australia, the
Northern Territory
and Tasmania), see Edwards et
al., supra n 7, chapter 10.

The following is based on Cica, supra n 12 at 56. See
also Gillies, supra n 5, pp. 605-6.

Queensland, Western Australia, Tasmania and the ACT there is a
statutory definition of birth for these purposes,
which applies to both murder
and manslaughter prosecutions: Criminal Code 1899 (Qld) s.
292, Criminal Code (WA),
s. 262, Criminal Code
(Tas) s. 153(4), Crimes Act1900 (ACT) s. 10. In
New South Wales, the relevant definition
with respect to murder
prosecutions is found in the Crimes Act 1900 (NSW), s. 20,
and with respect
to manslaughter prosecutions
the common law definition of birth in R v. Hutty [1983]
CLR 338 at 339 applies.
That common law definition
also applies with respect to both murder and manslaughter in South
Australia, Victoria
and the Northern Territory.

See P. Bates, 'Legal Criteria for Distinguishing Between Live
and Dead Human Foetuses and Newborn Children,'UNSW Law Journal,
1983, p. 143.